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Subsection (a) makes a willful failure to do the things required by the act a misdemeanor, which is a violation of public law and an offense against the public. Every person required to do any act is included, and the penalty for the misdemeanor is intended to secure the public right. It may be conceded that, where a statute is designed for the protection of individuals or a class of individuals, the penalty for the offense against the public is not exclusive, and an action for the private injury may be maintained, but any doubt as to the application of that doctrine to this case or as to the legislative intent from the language used and the consequences, as already stated, is at once dispelled by reading the whole subsection relating to the civil action, which is as follows:"(c) For any injury to person or property, occasioned by any willful violation of this act, or willful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such willful violation or willful failure as aforesaid, a right of action shall accrue to the personal representatives of the person so killed for the exclusive benefit of the widow and next of kin of such person and to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives not to exceed the sum of $10,000: * * Provided, that if and whenever there shall be in force in this state, a statute or statutes providing for compensation to workmen for all injuries received in the course of their employment, the provisions thereof shall apply in lieu of the right of action for damages provided in this act."

The proviso restrains any generality in the language of the section, because a mine manager could not come within the proviso under any circumstances or conditions. The provisions of the Workmen's Compensation Act are to apply in lieu of the right of action for damages provided in the act, and that right of action is necessarily against, the employer, and no one else. The fact that the employer in this case had elected not to provide and pay compensation, of course does not affect the question of the legislative intention. There was no cause of action against the defendant William Turton, and the instructions tendered by him should have been given.

As there was no joint liability the propriety of joining defendants where there is such a liability is not involved, and the case of Republic Iron & Steel Co. vs. Lee 227 Ill. 246, 81 N. E. 411, which was an action against joint tort-feasors, does not apply.

The judgments of the Appellate Court and the circuit court are reversed, and the cause is remanded to the circuit court. Reversed and remanded.

Duncan, J., dissenting.

APPELLATE COURT OF INDIANA.

IN RE AYERS. (No. 10086.)*

1. WORKMEN'S COMPENSATION-COURSE OF EMPLOYMENT. The words "by accident arising out of and in course of employment." as used in the Workmen's Compensation Act are liberally construed.

2. WORKMEN'S COMPENSATION INJURIES "ARISING OUT OF AND IN COURSE OF EMPLOYMENT."

Where it was customary for factory hands to heat an iron in a furnace after finishing work and dropping it into a bucket of water to heat it for washing, where the furnace was out, and for the first time a servant went to another department and placed his bucket of water in a tank of boiling acid, thinking it boiling water, and there was an explosion, the injuries to such servant were caused by an accident arising out of and in the course of employment, and such servant is entitled to compensation under the act. a servant being entitled to do things reasonably necessary to his personal health or comfort, though not strictly necessary to his employment.

3. WORKMEN'S COMPENSATION "WILLFUL MISCONDUCT”— "INTENTIONAL SELF-INFLICTED INJURY.”

Where the usual means for washing up failed one evening. a servant was not guilty of "willful misconduct" or "intentional self-inflicted injury" within the Workmen's Compensation Act in going to another department to heat water where he was injured.

Ibach, C. J., and Caldwell, J., dissenting.

Proceedings by Omer Ayers under the Workmen's Compensation Act to obtain compensation for injuries. Opposed by the Ansted Spring & Axle Company, employer. Certified question of law by the Industrial Board of the State of Indiana. Answered in favor of applicant.

FELT, J.

The Industrial Board of the State of Indiana has certified to this court a statement of facts and propounded a question of law thereon, for decision and determination by the court, as follows:

"Statement of Facts.

"On and prior to the 23rd day of November, 1916, Omer Ayers was in the employment of the Ansted Spring & Axle Company as a shearer at an average weekly wage of $15.95; that on and prior to the 23d day of November, 1916, a custom existed in the defendant's factory and among its employees whereby the employees quit ther actual work about fifteen minutes before going off actual duty and leaving the factory; that during said 15 minutes it was the custom among the said employees to wash their hands and faces and make changes in their clothing preparatory to leaving the factory; that for the purpose of washing their hands and faces the custom existed among the employees of heating a small * Decision rendered. Jan. 18, 1918. 118 N. E. Rep. 386.

bar of iron in the furnace and then dropping the heated bar of iron into a bucket of water; that this custom existed with the knowledge and acquiescence of the Ansted Spring & Axle Company; that on the evening of November 23, 1916, the fires in the furnaces had gone out when the employees quit their actual work for the purpose of washing and preparing to leave the factory; that on discovering the furnace had gone out the said Omer Ayers and another employee went into a room adjacent to the one in which they worked. but which was in a separate department from the one in which they worked; that in the said room the said Omer Ayers and his coemployee observed a tank of hot liquid, which had the appearance of water, and which the said Omer Ayers and his coemployee thought to be water; that, acting upon said belief they raised the lid of said tank, and the said Omer Ayers placed a bucket of cold water therein; that the liquid in the tank was not water, but was an explosive acid; that when the cold bucket, which the said Omer Ayers placed therein, came into contact with the acid in the tank, an explosion occurred by which the said Omer Ayers was severely burnt over his head, face, and hands; that as a result of said injury he was wholly disabled for work continuously from the 23d day of November, 1916, until and including the 7th day of May, 1917, and continuously since he has been partially incapacitated for work as a result of said injury, and is now so partially incapacitated, and will be for a period of time which cannot be determined at this time; that the Ansted Spring & Axle Company had actual personal knowledge of the accident resulting in the injury of the said Omer Ayers at the time that it occurred, and had actual knowledge of the extent of his injuries at the time that they were inflicted; that the evening of November 23, 1916, was the first occasion upon which the said Omer Ayers had worked after the fires had gone out of the furnaces and was the first occasion when he had gone into the adjoining room and attempted to heat his water by placing the cold bucket in the acid tank; that at the time of the said injury and prior thereto, the said acid tank contained no label or placard indicating its contents or that the contents were dangerous; that since the injury of the said Omer Ayers the said employer has labeled the said tank so as to indicate the character of its contents, and that it is dangerous."

"Question of Law.

"Did the accident resulting in the injury described in the foregoing statement of facts arise out of the employment of Omer Ayers with the Ansted Spring & Axle Company?"

[1] The words "by accident arising out of and in the course of the employment," as used in the Workmen's Compensation Acts, are liberally construed to accomplish the humane purposes of such laws. Holland-St. Louis Sugar Co. vs. Shraluka, 116 N. E. 330-331 and cases cited; In re Harraden, 118 N. E. 142.

A workman who receives an injury while at a place on, or reasonably near, the premises where he is to work, or at a place to which his employment requires him to go while doing something incident to or connected with his employment or which is reasonably necessary for, and preparatory to, the beginning of his work, or while doing something reasonably connected with his employment, or incident thereto, after his actual labors in his employment are completed for the day or for any particular period, may be allowed compensation for such injury. L. R. A. 1916A, pp. 235, 236, 237, and notes; Terlecki vs. Strauss, 85 N. J. Law, 454, 89 Atl. 1023; Edmunds vs. S S. Peterson, 5 B. W. Č. C. 157; Weber vs. W. Paper Co., 7 B. W. C. C. 795; Keyser vs. Burdick & Co., 4 B. W. C. C. 87; Scott vs. Payne Bros., 85 N. J. Law, 446, 89 Atl. 927, 4 N. C. C. A. 682; In re Sundine, 218 Mass. 1, 105 N E. 433, L. R. A. 1916A, 318; In re Employers' Liability Corp., 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306.

Where an employee is injured while on duty, or while doing something incident to his employment, and reasonably necessary to his personal health or comfort though not strictly necessary to his employment, such injury will ordinarily be held to arise out of the employment. Terlecki vs. Strauss, 85 N. J. Law, 454, 89 Atl. 1023; L. R. A. 1916A, 317-318; Clem vs. Chalmers Motor Co., 178 Mich. 340, 144 N. W. 848, L. R. A. 1916A, 352; Archibald vs. Ott, 77 W. Va. 448, 87 S. E. 791, L. R. A. 1916D, 1013; Moore vs. Lehigh Valley R. Co., 169 App. Div. 177, 154 N. Y. Supp. 620; Larke vs. John Hancock, etc., Co., 90 Conn. 303, 97 Atl. 320, L. R. A. 1916Ë, 584.

Where an employee is doing an act incident to his employment, while on the premises where he is employed to work which is customary among the employees, and the employer has acquiesced in such custom for a considerable length of time, an injury received by such employee while so engaged will ordinarily be held to arise out of the employment within the spirit and meaning of the Indiana Workmen's Compensation Act. In re Loper 116 N. E. 324 and cases cited.

An injured employee otherwise entitled to compensation cannot be denied the benefit of the Workmen's Compensation Act because he was guilty of negligence in doing the act which resulted in his injury. L. R. A. 1916A, page 232 et seq.; In re Loper, 116 N. E. 324-326; Clem vs. Chalmers Motor Co., supra; Moore vs. Lehigh Valley R. Co., 169 App. Div. 177, 154 N. Y. Supp. 620; Scott vs. Payne Bros., 85 N. J. Law, 446, 89 Atl. 927, 4 N. C. C. A. 682.

[2] The fact that the injured employee departed from the usual and customary way of providing hot water for washing, when deprived of the usual means of heating water for such purpose, cannot deprive him of the benefits provided by the Indiana workmen's compensation law. He was still pursuing his original pur

pose and the deviation in the plan of accomplishing the end in view, under the circumstances, was not unreasonable or unnatural.

[3] The custom of washing before leaving the premises and of providing suitable water by the means indicated by the finding of facts was known to and acquiesced in by the master. No other means had been provided for the workmen to enable them to cleanse themselves before leaving the place of work.

The act of going into an adjoining department falls short of showing "willful misconduct" or "intentional, self-inflicted injury." Section 8, Acts 1915, p. 394. It evidences a mistake and might afford proof of negligence on the part of the employee, but negligence is not involved in the question presented for our determination. Clem vs. Chalmers Motor Co., supra; Archibald vs. Ott, supra; In re Sundine, supra; Holland-St. Louis Sugar Co. vs. Shraluka, supra; L. R. A. 1916A, 320; L. R. A. 1916A, 355; L. R. A. 1916A, 317.

The question submitted should be, and is, answered in the affirmative.

Batman, P. J. and Dausman, and Hottel, JJ., concur. Ibach, C. J., and Caldwell, J., dissent.

APPELLATE COURT OF INDIANA.
DIVISION No. 2.

IN RE RAYNES. (No. 10064.)*

1. WORKMEN'S COMPENSATION-SCOPE OF EMPLOYMENT. If to collect accounts for defendant company was the exclusive purpose of the company's collector of accounts in going to another city, then in going to such city the collector, who was also secretary treasurer of the company. was discharging the duties of his employment.

2. WORKMEN'S COMPENSATION-“EMPLOYEE.”

Under Workmen's Compensation Act, providing that an "employee" shall include every person in the service of another under any contract of hire or apprenticeship, section 16, providing that compensation shall have the same preference against the assets of the employer as is allowed for any unpaid wages for labor, section 38, providing for compensation to dependents. and section 40, providing that in computing compensation the average weekly wages of the employee shall be considered as not exceeding $24, employees intended to become beneficiarics are, in a general way, those whose remuneration is popularly designated as wages rather than salary, whose compensation for service is not munificent, who may reasonably be presumed to be dependent on wages for sustenance of themselves and families, and whose wives and children may reasonably be presumed without proof to be dependent on them for support, whose labor is manual * Decision rendered, Dec. 21, 1917. 118 N. E. Rep. 387.

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