of building, structures. streets, highways. etc. In fact. all work seems to be considered as hazardous work under the act where machinery is is used in the prosecution of the work, the only exception being farm building and farm improvements; but it has been held in numerous decisions in other states that this exception does not obtain where the work on the farm is done in connection with machinery. Raney v. State Industrial Acc. Commission et al., 85 Or. 199. 166 Pac. 523; In re Boer, 65 Ind. App. 408, 117 N. E. 507. The case relied upon by the defendant for reversal is Board of Commissioners of Kingfisher County v. Grimes et al.. 75 Okla. 219, 182 Pac. 897. In that case, the plaintiff was employed by the county to survey a public road. The injury of which he complained was sustained while going to his work. The claim for recovery was based under the head of "engineering works." as contained in the statute. In delivering the opinion of the court, it was said: "We are constrained to hold that the term 'engineering works' as used in section 2 of the act refers to establishments or places of business where engineering work is carried on, and does not include or refer to work of an engineer on a public highway." The Grimes Case, supra, came before this court on direct appeal from the action of the State Industrial Commission, and this court had before it all the evidence concerning the character of the employment in which the employee was engaged at the time of the injury. The decision in the Grimes Case might have been different had the evidence disclosed that the injury was received while the plaintiff was engaged in surveying. and that the injury was occasioned by reason of machinery used in the construction of roads. The compensation provided for injured workmen in the various hazardous employments specifically mentioned in the act is not confined to the employee operating the machinery, but applies to any employee regardless of any direct connection between the nature of the work of such employee and the machinery. Barr The case of Board of Commissioners of Cleveland County v. Barr et al., 173 Pac. 206, in many respects, is similar to the instant case. received injuries while engaged in doing blasting upon the state highway in Cleveland county, which had been declared a public highway by the board of county commissioners, for which injuries the State Industrial Commission awarded him compensation. From this award, the board of county commissioners appealed. In delivering the opinion, the court said: "It is provided in section 10, art. 2, of the Workmen's Compensation Act that the decision of the Industrial Commission shall be final as to all questions of fact. Since it is conceded that George T. Barr was engaged in work on a state highway being improved under the directions of of the board of county commissioners of Cleveland county, the only question presented by the appeal is whether the Commission erred, as a matter of law, in holding that the said George T. Barr was an employee of Cleveland county while pursuing the work in which he was engaged at the time of his injuries." In that case the only question at issue was as to the employment of Barr by the board of county commissioners. The question as to whether or not his being engaged in work on the public highway would be included under section 2 of the act was not raised. It seems to have been conceded that the act did cover work on the public highway. The act in question, in order to effectuate the legislative intent, should be given a reasonable construction, and we are of the opinion that it is clearly deducible from the entire act that one working on a public highway is engaged in a hazardous occupation where a steam engine is used in connection therewith at the time of the injury, and particularly so where the injury resulted from the use of the engine. It is our opinion that the judgment of the trial court should be affirmed, and it is so ordered. Harrison, C. J., and McNeill, Nicholson, Elting, and Kennamer, JJ., concur. MARCUM v. HICKLE. (Supreme Court of Tennessee. October 8, 1921.) 234 Southwestern Reporter 321. MASTER AND SERVANT-DEPENDENTS OF MORE THAN ONE CLASS MAY TAKE COMPENSATION. Under Workmen's Compensation Act, § 30, subsecs. 3-18, dependents of more than one class may, in the order named, take compensation up to the point that 50 per cent of the monthly wages of the deceased employee for the statutory period has been exhausted, provided that those of the first class are not entitled to the entire amount. (For other cases, see Master and Servant, Dec. Dig. § 386[5].) Error to Circuit Court, Knox County; Von A. Huffaker, Judge. Suit by S. G. Hickle, administrator, against J. F. Marcum. Judgment for plaintiff, and defendant brings error. Affirmed. James M. Meek, of Knoxville, for Marcum. MCKINNEY, J. This suit was instituted by S. G. Hickle, administrator of Ernest Hickle, against J. F. Marcum to recover compensation for the use and benefit of certain dependents, under the Workmen's Compensation Act. Liability was conceded, and it was admitted that those wholly dependent upon the deceased, at the time of his death, were his father, mother, and two brothers, aged, respectively, 11 ad 14 years. It is further agreed that the deceased, at the time of his death, was earning $15 per week, and that in no event would his administrator be entitled to recover more than 50 per centum thereof, viz., $7.50 per week for a period not to exceed 400 weeks. The trial court adjudged the father and mother entitled to 35 per centum of said weekly wage, or $5.25 per week during dependency, not to exceed 400 weeks. This adjudication is conceded to be correct. The trial court further adjudged that the two brothers were entitled to recover 25 per centum of said weekly wage, to wit, $3.75 during dependency, not to exceed 400 weeks, but said latter allowance, when added to the compensation allowed the father and mother, being in excess of 50 per centum of the weekly wage of the deceased, the trial court reduced said allowance to $2.25 per week, so that the aggregate would amount to $7.50 per week, or 50 per centum of the weekly wages which the deceased was earning at the time of his death. The controversy arises as to that part of the judgment awarding compensation to the two brothers. The insistence of the plaintiff in error is that the act classifies dependents, and that where there are dependents falling within a certain class, they alone take to the exclusion of those falling within subsequent classes. On the other hand, the defendants in error insist that dependents are entitled to take compensation in the order in which they are classified until 50 per centum of the monthly wages of the deceased during the time specified in the act shall have been exhausted. A determination of this question involves the construction of section 30 of the act (chapter 123 of the Acts of 1919), so much thereof as is pertinent to this inquiry being as follows: "Be it further enacted, that for the purposes of this act, the following described persons shall be conclusively presumed to be wholly dependent: * * * "(3) Wife, child, husband, mother, father, grandmother, grandfather, sister, brother, mother-in-law, and father-in-law who were wholly supported by the deceased workman at the time of his death and for a reasonable period of time immediately prior thereto shall be considered his actual dependents, and payment of compensation shall be made to them in the order named." The subsections following, down to 18, provide, in case of death, what each dependent or class of dependents named in subsection 3 shall receive. Subsections 12 and 13 relate to those who fall within the class of dependents in the instant case, and are as follows: "(12) If the deceased employee leave no widow or child or husband entitled to any payment hereunder, but should leave a parent or parents, either or both of whom are wholly dependent on the deceased, there shall be paid, if only one parent, twenty-five per centum of the average weekly wages of the deceased to such parent, and if both parents, thirty-five per centum of the average weekly wages of the deceased to such parents. "(13) If the deceased leave no widow or dependent child or husband or parent entitled to any payment hereunder but leaves a grandparent, brother, sister, mother-in-law, or father-in-law wholly dependent upon him for support, there shall be paid to such dependent, if but one, twenty per centum of the average weekly wages of the deceased, or if more than one, twenty-five per centum of the average weekly wages of the deceased, divided between them or among them share and share alike." Subsection 18 provides that- "Actual dependents shall be entitled to take compensation in the order named in subsection (3) above, until fifty per centum of the monthly wages of the deceased during the time specified in this act shall have been exhausted, but the total compensation to be paid to all actual dependents of a deceased employee shall not exceed in the aggregate eleven ($11.00) dollars per week." Analyzing this last provision of the act, it is apparent that the intention of the Legislature was to appropriate 50 per centum of the monthly wages of deceased to dependents, provided there were sufficient dependents to consume that amount, and provided further that in no event should the aggregate compensation exceed the sum of $11 per week. There is nohing ambiguous in subsection 18, nor is it out of harmony with the other provisions of section 30. Any other interpretation would result in its destruction. In only one subsection (7) is as much as 50 per centum of the weekly wages of the deceased allowed as compensation. If it were not intended to join dependents named in the various subsections until 50 per centum of the wages of the deceased had been exhausted, then this provision of the act would be meaningless, for the preceding subsections had already stated what the various dependents were entitled to individually or as a class. In the case under consideration, upon looking to the list of dependents enumerated in subsection 3, we find that the first in order are the father and mother, and the act provides that they are to receive 35 per centum of the weekly wages of the deceased. The two brothers are the next dependents appearng in the list, and they are entitled to the remaining 15 per centum; the result being that the dependents, in the order named in subsection 3, have exhausted 50 per centum of the monthly wages of the deceased as expressly and implicitly provided by the act. The circuit judge reached this result, and his judgment will be af- " firmed. BLACK DIAMOND COLLIERIES v. DEAL. (Supreme Court of Tennessee. Oct. 27, 1921.) 234 Southwestern Reporter, 322. MASTER AND SERVANT-COMPENSATION DEPENDENT ON TIMELY NOTICE OF ACCIDENT. Under Workmen's Compensation Act, § 22, unless the employer has actual knowledge of an accident, the injured employee is not entitled to compensation accruing before written notice to the employer, and unless such notice is given within 30 days of the accident, no compensation shall be payable under the act, unless a reasonable excuse for the failure is made to the satisfaction of the tribunal trying the claim; section 23 relating to form of the notice, merely saving a defect from being a bar to compensation, unless the employer shows he was injured thereby. (For other cases, see Master and Servant, Dec. Dig. § 398.) Error to Circuit Court, Anderson County; John Jennings, Jr., Special Judge. Suit by Tom Deal against the Black Diamond Collieries. Judgment for plaintiff, and defendant brings error. Reversed and dismissed. Ben H. Testerman, of Knoxville, J. H. Underwood, of Clinton, and Frantz, McConnell & Seymour, of Knoxville, for Black Diamond Col lieries. H. C. Scruggs, J. B. Burnett, and J. H. Wallace, all of Clinton, for Deal. GREEN, J. This is a proceeding by an employee to recover under our Workmen's Compensation Act (Chapter 123 of the Acts of 1919) for injuries alleged to have been sustained by him while in the service of the plaintiff in error. The suit was resisted for the reason, among others, that the employee failed to give the employer written notice of the accident as required by the statute. This suit was brought several months after the employee was injured, and notice was given pending the suit. This was not sufficient. The act provides as follows: "Sec. 22. Be it further enacted, that every injured employee or his representative shall, immediately upon the occurrence of an injury or as Soon thereafter as is reasonable or practicable, give or cause to be given to the employer written notice of the injury, and the employee shall not be entitled to physician's fees nor to any compensation which may have accrued under the provisions of this act from the date of the accident to the giving of such notice, unless it can be shown that the employer had actual knowledge of the accident; and no compensation shall be payable under the provisions of this act unless such written notice is given the employer within thirty days after the occurrence of the accident, unless reasonable excuse for failure to give such notic is made to the satisfaction of the tribunal to which the claim for compensation may be presented. "Sec. 23. Be it further enacted, that the notice required to be given of the occurrence of an accident to the employer shall state in plain and simple language the name and address of the employee, the time, place and nature and cause of the accident resulting in injury or death, and shall be signed by the claimant or by some person in his behalf, or by any one or more of the claimant's dependents if the accident resulted in death to the employee. But no defect or inaccuracy in the notice shall be a bar to compensation unless the employer can show to the satisfaction of the tribunal in which the matter is pending that he was prejudiced by the failure to give the proper notice and then only to the extent of such prejudice. "The notice shall be given personally to the employer or to his agent or agents having charge of the business in working at which the injury was sustained by the employee." There is very little room for construction of this language. Its meaning is quite plain. Unless the employer has actual knowledge of the accident, the employee shall not be entitled to any compensation which may have accrued prior to written notice to the employer. Unless such written notice is given within 30 days after the occurrence of the accident no compensation shall be payable under the provisions of the act, except a reasonable excuse for failure to give the notice is made to the satisfaction of the tribunal trying the case. Such is the effect of section 22. Section 23 relates to the form of the notice, but provides that a defective notice shall not be a bar to compensation unless the employer can show that he was thereby prejudiced. In the case before us, as stated before, no written notice was given to the employer within 30 days after the accident, nor was any excuse offered for such dereliction. There must be written notice within 30 days, or there must be a satisfactory excuse. Otherwise compensation cannot be enforced. To hold otherwise would be to disregard the provisions of the act. It results that the lower court erred in rendering judgment in this case, and this judgment must be reversed, and the suit dismissed. LUMBERMEN'S RECIPROCAL ASS'N v. WARNER ET UX. (No. 644.) (Court of Civil Appeals of Texas. Beaumont. Oct. 14, 1921. Rehearing Denied Nov. 9, 1921.) 234 Southwestern Reporter, 545. 1. MASTER AND SERVANT-"DEPENDENT" PARENTS WITHIN COMPENSATION ACT DEFINED. In order to be a "dependent" parent within the Workmen's Compensation Act, it is not necessary for an old and crippled parent to exhaust all the resources of his life's work and face a dependent old age. (For other cases, see Master and Servant, Dec. Dig. § 388.) (For other definitions, see Words and Phrases, First and Second Series, Dependent.) |