$3.50 per week. As Judge Woodward said in 180 App. Div. supra, the law was not intended to create a fund to pay off mortgages, and it can be added that it is not intended to furnish money to be deposited in the bank to draw interest, and not even to pay indebtedness. It impresses me that unless we are going to throw down the bars and let in practically every claim for dependency, we will have to reverse this award. The only question is: What is to be our policy? I will dis sent. STIMAL v. JEWETT & CO. ET AL. (New York Supreme Court, Appellate Division, Third Department. November 16, 1921.) 190 New York Supplement 889. 1. MASTER AND SERVANT-COMPENSATION AWARD ON PHYSICIAN'S UNSWORN REPORT REVERSIBLE. An award under Workmen's Compensation Law based on the unsworn report of a physician, received by the Industrial Commission without notice to employer and insurance carrier, outside of a regular hearing, without opportunity for cross-examination, is prejudicial to the employer and insurance carrier, and must be reversed. (For other cases, see Master and Servant, Dec. Dig. § 405[1].) 2. MASTER AND SERVANT-COMPENSATION CASE REMITTED FOR REHEARING FOR ADDITIONAL FINDINGS. The reviewing court, on reversing an award under Workmen's Compensation Law, because based on unsworn report of a physician without opportunity to cross-examine him, will not dismiss the claim on the ground that the employee's injury, while being transported in employer's bus to the place of work, did not arise in the course of the employment, in the absence of a finding as to whether the passage in the bus was on the employer's or the employee's time, but will remit the matter for a rehearing. (For othr cases, see Master and Servant, Dec. Dig. § 417[9].) Appeal from State Industrial Commission. Proceedings under the Workmen's Compensation Law (Consol. Laws, c. 67) by William Stimal for compensation for injuries, opposed by Jewett & Co., employer, and the Employers' Mutual Insurance Company of New York, insurance carrier. Award by State Industrial Commission for claimant, and employer and insurance carrier appeal. Reversed, and matter remitted to Commission. Argued before John M. Kellogg, P. J., and Cochrane, Henry T. Kellogg, Kiley, and Van Kirk, JJ. Blauvelt & Warren, of New York City (Joseph A. Warren, of New York City, of counsel), for appellants. Charles D. Newton, Atty. Gen.. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. JOHN M. KELLOGG, P. J. [1] On December 13, 1920, the last hearing was had before the Commission, when it announced that it would ask the claimant to appear before Dr. Grant for examination, and the case was continued. Dr. Grant made a report to the Commission January 12, 1921, and it is evident that his report forms the basis of the determination that there was a loss of the use of one-third of the hand. Apparently the report was not submitted at any hearing of which the appellants were notified. Dr. Grant did not appear for examination, and there was no opportunity to cross-examine him. The award therefore stands on the doctor's unsworn statement, which was received outside of any regular hearing. The law contemplates that the employer and the insurance carrier shall be notified of the hearing and participate therein, and the receipt of this report, under the circumstances, was prejudicial to the appellants and calls for a reversal. Jack v. Morrow Mfg. Co., 194 App. Div. 565, 185 N. Y. Supp. 588. The difficult question is whether the claim should be dismissed or the matter sent back to the Commission for a rehearing. The contention of the appellant is that the injury did not arise in the course of the employment, and if this contention is sustained the claim should be dismissed. If, however, there is a chance that the claim can be sustained, the claimant should have an opportunity to fully present his case to the Commission. [2] Jewett & Co.'s plant was on the Military Road, some distance from the city. The trolley cars ran by the plant, but did not give satisfactory service, and the employer deemed it for its interest to furnish and operatae its own bus between the city and the works. The bus was furnished solely for the use of the employees and was not a public conveyance. The employer, however. charged each employee using it the same fare he would pay if he used the trolley car. The bus called at various places in the city and picked up the employees who presented themselves there. The claimant was near the garage where the bus was kept, and in the early morning went to the garage and took a place upon the bus. The bus was a little late in starting, on account of some fault in the engine, and as the bus proceeded upon its way, it was found necessary to stop at a garage and have some work done upon it. At the early morning hour the garage was not open. It was a cold morning, about ten degrees below zero. The claimant remained in the bus. The chauffeur and the other employee upon the bus went to the boiler room of the garage for relief from the cold. When they discovered that it would be some time before the bus could proceed, they went to the door and called the claimant into the boiler room to get warm. On entering the room he fell down the steps and received his injury. The claimant, with confidence, relies on Kowalek v. New York Consolidated Railroad Co., 229 N. Y. 490, 128 N. E. 888, as controlling this case. There, the employee in leaving the works rode upon the car of the employer upon a free pass, and it was held that being in a public conveyance he was not there as an employee, but as a passenger, the same as the other passengers in the car, and compensation was denied. The claimant contends that Littler v. George A. Fuller Co., 223 N. Y. 369, 119 N. E. 554, establishes that he was in the course of his employment at the time of the injury. There, the employer, who was building a house about two miles away from the railroad station, found it necessary to run a bus from the station to the house in order to carry his employees, and an employee who received an injury while riding in the bus was held to have received it in the course of the employment, and quotes with confidence from page 371, of 223 N. Y., and page 555 of 119 N. E., the opinion of the court: * * * “The place of injury was brought within the scope of the employment because Littler, when he was injured, was ‘on his way from his duty within the precincts of the compny.' Matter of De Voe v. N. Y. State Railways, 218 N. Y. 318, 320." The claimant also relies upon Driscoll v. Henry Gillen & Sons Lighterage, Inc., 226 N. Y. 566, 123 N. E. 863; Krawczyk v. MacNamara, 226 N. Y. 567, 123 N. E. 874; and Sztorc v. James H. Stansbury, Inc., 189 App. Div. 388, 179 N. Y. Supp. 586. If the claimant was in the course of his employment while riding in the bus, the fact that the bus, while being operated by his employer, became unable to run and required services at the garage, did not deprive him at the garage of his position as an employee. Moore v. Lehigh Valley R. Co., 217 N. Y. 627, 111 N. E. 1092. The bus arrived at the plant about 9 o'clock a. m. Claimant was paid for the time he was in the bus and garage. The company, in a statement, declares that the men were paid from the time they rang the clock in the plant, with the addition, "This is subject to only such exceptions as we might voluntarily make." The Commission made no finding whether the passage in the bus was on the employer's time or the employee's time, and it may be important to have a finding upon that subject, and other facts may develop upon a rehearing which may have a direct bearing upon the question in dispute. We are not now prepared to hold as matter of law that there can be no recovery in this case, and therefore the award is reversed, and the matter remitted to the Commission for its further consideration. All concur. BOARD OF COM'RS OF OKMULGEE COUNTY v. STATE EX REL (Syllabus by the Court.) 1. MASTER AND SERVANT HAULING WATER FOR ROAD ENGINE HELD "HAZARDOUS OCCUPATION" WITHIN COMPENSATION ACT. D. was engaged in hauling water for a steam engine used in pulling a road grader in the construction of a public highway. The team driven by D. became frightened at the noise made by the engine and ran away. D. was thrown from the wagon and injured. Held, that D., at the time of the injury, was engaged in a "hazardous occupation" as contemplated by the Workman's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 361.) (For other definitions, see Words and Phrases, First and Second Series, Hazardous.) 2. MASTER AND SERVANT COMPENSATION AWARD CONCLUSIVE IN ABSENCE OF FRAUD IF COMMISSION HAD JURISDICTION. The award made by the Industrial Commission under the Workman's Compensation Act becomes final and conclusive, unless appealed from as therein provided; and in an action instituted by the Commission as provided in the act to recover the amount of the award so made, the only question to be considered by the trial court in the absence of fraud is whether or not the Commission had jurisdiction in the premises. (For other cases, see Master and Servant, Dec. Dig. § 4162, New, vol. 11A Key-No. Series.) Appeal from District Court, Okmulgee County; Mark L. Bozarth, Judge. Proceeding by F. Deal before the State Industrial Commission for an award for personal injuries, opposed by the Board of County Commissioners of Okmulgee County, employer, in which an award was made for the applicant, but was not paid, and an action was brought by the State, on the relation of the State Industrial Commission, for the benefit of the applicant, against such Board of County Commissioners. Judgment for plaintiff, and, from an order denying motion for new trial, the Board of County Commissioners appeals. Affirmed. L. A. Wallace, of Okmulgee, for plaintiff in error. Hughes & Dannenburg, of Sapulpa, for defendant in error. PITCHFORD, J. This is an appeal from the district court of Okmulgee county, Okla., complaining of a judgment rendered on the 18th day of May, 1920, in favor of the defendants in error, who were the plaintiffs in the lower court, and against the board of county commissioners of Okmulgee county, defendants in the lower court. For convenience, the parties will hereafter be designated as plaintiffs and defendant. The action grew out of a personal injury susained by F. Deal while engaged in work on a public highway, in Okmulgee county, and involves the construction of chapter 246, Sees. Laws of 1915. The accident occurred on June 26, 1919, while Deal was acting as a teamster in hauling water for a steam engine used in pulling a road grader in the construction of the highway. The team which Deal was driving became frightened at the steam engine and ran away, which caused him to be thrown from his wagon to the ground, thereby suffering the injuries complained of in the petition. In due time, Deal filed a claim against the county with the State Industrial Commission. Thereafter, on the 18th day of August, 1919, the Industrial Commission made its award upon said claim by which it ordered the county of Okmulgee to pay the claimant compensation computed from the 10th day of July, 1919, at the rate of $10 per week, and until the final termination of his disability, and for the payment of all medical treatment during the first 15 days after the accident. The instant action followed as a result of the failure of the board of county commissioners to pay the claimant the amount awarded him or any part thereof. A jury trial was waived and the cause was tried to the court. The plaintiff recovered a judgment against Okmulgee county in the sum of $5,000 and the cost of the suit. From the order denying its motion for new trial, the defendant prosecutes this appeal. [1, 2] The defendant contends that work upon the public highway does not come within the terms of hazardous employment as contemplated by the Workman's Compensation Act, and as a consequence would not cover injuries sustained by an employee of the county engaged in the construction or repair of public roads at the time of injury. The act referred to is found in Sess. Laws of Oklahoma 1915, p. 574, section 2 of which reads as follows: "Compensation provided for in this act shall be payable for injuries sustained by employees engaged in the following hazardous employments, to wit.: "Factories, cotton gins, mills and workshops where machinery is used; printing, electrotyping, photograving and stereotyping plants where machinery is used: foundries, blast furnaces, mines, wells, gas works, waterworks, reduction works, elevators, dredges, smelters, powder works; laundries operated by power; quarries; engineering works, logging, lumbering, street and interurban railroads not engaged in interstate commerce, buildings being constructed, repaired or demolished, farm building and farm improvements excepted, telegraph, telephone, electric light or power plants or lines, steam heating or power plants, and railroads not engaged in interstate commerce. If there be or arise any hazardous occupation or work other than those hereinabove enumerated it shall come under this act." It is true work on a highway is not specifically mentioned as a hazardous employment in the act, and if we are to be governed only by a strict construction of the language contained in section 2, in all probability we would be forced to hold that the work in which Deal was engaged at the time he received the injury complained of would not be covered by the provisions of the act. But when we consider the purposes to be subserved, and the object of the Legislature in enacting the Workman's Compensation Laws, we are able to appreciate the humanitarian motives prompting the passage of the act. The law as enacted is for the protection of the injured workmen, who in the great majority of cases are dependent upon their daily wage, not only for the support of themselves, but likewise for the support of their families. The act, as we construe the same, is intended to cover all accidental injuries received by employees in any kind of hazardous employments enumerated in section 2, where the work performed by such employee is of a manual or mechanical nature. The act must be construed as a whole, and from the entire act deduce, if we can do so, just what is embraced within its terms. Section 11 of the act provides as follows: "In any proceeding for the enforcement of a claim for compensation under this act, it shall be presumed in the absence of substantial evidence to the contrary: "(1) That the claim comes within the provisions of this act. “(2) That sufficient notice thereof was given. "(3) That the injury was not occasioned by the willful intention of the injured employee to bring about the injury of himself or of another. "(4) That the injury did not result solely from the intoxication of the injured employee while on duty. "(5) That the injury did not result directly from the willful failure of the injured employee to use a guard or protection against accident furnished for his use pursuant to any statute or by order of the Labor Commissioner." The term "employer," as used in the act, includes the state, county, city, or any municipality when engaged in any hazardous work within the meaning of the act in which workmen are employed for wages. Section 13 of the act provides that the award of the Industrial Commission shall be final and conclusive upon all questions within its jurisdiction between the parties, unless appealed from as therein provided. In the instant case, the county failed to make any defense before the Commission and failed to appeal from the finding or award of the Commission. It therefore follows that the only question for our determination is whether or not the work in which Deal was engaged at the time of his injury is included within the terms of section 2, supra. It is further provided by the act, if payment of the award is not made, that the amount awarded by the Commission shall constitute a liquidated claim for damages against the employer which may be recovered in an action to be instituted by the Commission in the name of the people of the state; the compensation recovered by the Commission to be paid to the person entitled thereto in accordance with the award. As we have before stated, the word "highway" or "public road" is not specifically mentioned in section 2, supra; but the act does include any employee engaged in working a quarry which is designated as a hazardous employment. "Quarry" is defined by the act as an opening or cut from which coal is mined, er clay, ore, mineral gypsum, gravel, sand, or rock is cut or taken for manufacturing, building. or construction purposes. "Construction work" is defined by the act as improvements or alteration |