Settlement and Release.-The act recognizes the legality of voluntary settle- Settlement and Release.-News company was entitled to have moneys paid Skylarking. (SEE FOOLING.) Special Fund. 709 930 1016 Special Fund.-The law providing special additional compensation for permanent disability to be paid out of special fund created by insurance carriers paying to the state treasurer $100 for every case of injury causing death in which there are no persons entitled to compensation not unconstitutional. State Industrial Commission v. Newman et al. (N. Y.). 849 Special Fund.-Undertaker awarded $100 on account of funeral expenses of deceased employee was not a "person entitled to compensation" so as to make inapplicable provisions for insurance carrier to pay the state treasurer $100 for every case of injury causing death where there are no persons entitled to compensation. State Industrial Commission v. Newman et al. (N. Y.).. Statute. Statute.-Employer not liable if injury did not occur in usual course of his business prior to amendment of statute. Carter v. Industrial Acc. Commission of California et al. (Cal.). Statute. The act is not invalid on ground that Legislature could not and did not intend to require townships to make election to escape provisions of the act. McLaughlin, Commissioner of Highways v. Industrial Board of Illinois et al. (Ill.) 849 497 504 Statute. Workmen's Compensation Act is based upon principle that employer should pay certain fixed amounts for accidental injuries irrespective of negligence. Houlihan vs. Sulzberger & Sons Co. (Ill.)...... 536 Statute.-Workmen's Compensation Act is a remedial statute and should be given a broad interpretation for the purpose of carrying out its manifest purpose and should be liberally construed. In re Simmons (Me.)...... 98 4 Storage. (SEE WAREHOUSE.) Subcontractor. (SEE INDEPENDENT CONTRACTOR.) Subrogation. Subrogation.-Compensation Act which transfers to employer his em- ployee's right of action against third 18 18 892 assignment vested title thereto in employer, who could not be divested thereof against his consent by either employee or the commission. Sabatino v. Thomas Crimmins Const. Co. (N. Y.). Subrogation.-Employer cannot recover from third person, amount in excess of sum paid to employee, for any other ruling would allow employer to speculate at servant's expense. Albert A. Albrecht Co. v. Whitehead & Kales Iron Works (Mich.) Sunstroke and Heat Prostration. 709 .....1013 Sunstroke and Heat Prostration.-Sunstroke is a personal injury caused by accident within the meaning of the act. State ex rel. Rau v. District Court, Ramsey County, et al. (Minn.).. 93 Sunstroke, Etc.-Where employee engaged in removing brickwork around a boiler, died as result of heat prostration, it not appearing that he exercised in any unusual manner, or to an unusual degree different from other employees engaged in same work, death cannot be deemed accidental so as to warrant award. Roach v. Kelsey Wheel Co. et al. (Mich.).. .....1025 Sunstroke, Etc.-Evidence held to show sunstroke caused employee's death. Hernon v. Holahan et al.-In re London Guarantee & Accident Co., Limited (N. Y.).... Surgical Operation. Surgical Operation.-Where board found that blindness was caused by cataract from injury and that operation would not be attended with any risk, employee is not entitled to compensation until such operation is performed. Joliet Motor Co. v. Industrial Board et al. (Ill.).. Survival of Right to Compensation. (SEE SURVIVORSHIP.) Survivorship. Survivorship.-Where injured person died without leaving heirs after award was made, but before any warrant was issued, award did not survive in favor of his administrator, as assignability is the test of survivorship and administrator's right was acquired by "operation of law" which is a term indicating the manner in which a party acquires rights. Industrial Ins. Commission (Wash.) V. Third Person. 1120 30 Ray 452 Third person. Compensation Act which transfers to employer his employee's right of action against third person is constitutional and valid, the act being binding only when the parties have elected to abide by it. Friebel v. Chicago City Ry. Co. et al. (I.).. Third Person.-No more than the compensation allowed by the act can be recovered on account of injury to employee by negligence of third person, where employee, employer and third person are under the act; and the one directly liable for compensataion is the employer. Right of recovery against third person shall be subrogated to employer. Friebel v. Chicago City Ry. Co. (Ill.).. Third Person.-Employer has and acquires no rights of action against third party liable to employee, but is simply subrogated to right enforcing employee's claim and distributing amount recovered and this right does not vest in him any right of action which can pass by subrogation to his insurer. Marshall-Jackson Co. v. Jeffery et al. (Wis.).. Third Person.-Plaintiff had remedy under Workmen's Compensation Law, so he could not recover in an action against defendant. Lee v. Cranford Co., Inc. (N. Y.) 18 18 892 854 790 Third Person.-That servant injured by negligence of third person, knew what his rights were as to free treatment under act did not bar his recovery against persons who caused his injury on theory that he had elected to receive compensation under act unless evidence showed that hospital service was furnished under act and that servant indicated he had exercised his option to obtain compensation thereunder. Wahlberg & Bowen, et al. (Mass.) Third Person.-Employee may sue third party negligently injuring him, although receiving workmen's compensation from employer-where contractor has taken out workmen's compensation insurance, an owner is not liable to one of contractor's employees for injuries sustained, under Workmen's Compensation Act. Houlihan v. Sulzberger & Sons Co. (Ill.). 536 Third Person.-Employee injured by third party may proceed against his employer under Workmen's Compensation Act or pursue his common-law rights against third party. The act requiring employee to assign cause of action against third party upon electing to seek compensation, assignment is effective upon election being made and before award. Sabatino v. Thomas Crimmins Const. Co. (N. Y.).. 709 709 709 Third Person.-Employee's action against third party, employer's failure to pay compensation award, or secure its payment, which exposed him to certain actions and penalties immaterial where third party had paid such award to commission, but employee refused to accept it. Sabatino v. Thomas Crimmins Const. o. (N. Y.).. Third Person.-Where employee electing to proceed against employer pursuant to Workmen's Compensation Act assigned to him his right of action against third party and third party paid award to commission and took release from employer in good fath, employee cannot thereafter have commission vacate award, withdraw his claim against employer and sue third party. Sabitano v. Thomas Crimmins Const. Co. (N. Y.) Third Person.-Employee's right to compensation from employer did not prevent bringing of action against foreman whose negligence caused injury as the words "third person" have their usual meaning and include any person other than employer or employee. Feda v. Cudahy Packing Co. (Neb.) Third Person.-News Company was entitled to have moneys paid its injured employee by railroad applied to discharge of its own obligation to employee under the act. Rosenbaum v. Hartford News Co. (Conn.)...... 930 Third Person.-Employer cannot recover from thir person amount in excess of sum paid to employee, for any other ruling would allow employer to speculate at servant's expense. Albert A. Albrecht Co. v. Whitehead & Kales Iron Works (Mich.)... Tuberculosis. 649 ..1013 Tuberculosis.-That employee's injury resulted in nephritis, which lowered his power to resist an attack of tuberculosis sustained commission's finding that injury accelerated his disease. Retmier et al. v. Cruse (Ind.).. 971 Typhoid Fever. Typhoid Fever.-Typhoid fever caused by drinking infected water is not an accident within the meaning of the statute. State ex rel. Faribault Wooden Mills Co. et al. v. District Court, Rice County, et al. (Minn.).... Vertigo. Vertigo. Evidence that brickmaker, previously in good health, when attacked by vertigo or some similar disorder while on brick pile some 15 feet above ground, fell and was injured, held to sustain commission's finding that injury was accidental. Santacroce v. Sag Harbor Brick Works.In re Travelers' Ins. Co. (N. Y.).. Wages. Wages.-Wages as used in statute relating to expected increases in wages refers to those earned in particular employment, out of which injury arose. In re Gagnon-In re Massachusetts Bonding & Ins. Co. (Mass.) Waiver. 89 1132 84 749 Waiver. Where stipulation before arbitrator that only question was whether accident arose out of deceased's employment raising no other question before the arbitrator or Industrial Board, employer waived defense that deceased was not engaged in extrahazardous occupation. Chicago Packing Co. v. Industrial Board of Illinois et al. (Ill.).. Waiver. Where commission gave notice that award would be amended in absence of good cause shown and insurer appeared and objected on ground that relation of master and servant did not exist, its failure to object on other grounds waived them. Massachusetts Bonding & Ins. Co. v. Industrial Accident Commission of California et al. (Cal.)........ 484 Warehouse. 18 Warehouse.-Employees of warehouse of retail store not having elected not to be bound by act will automatically be brought within it; where duties consisted of loading trucks from warehouse platform, his occupation was part of enterprise of employer in conducting warehouse relative to extrahazardous occupation and so within the act. Friebel vs. Chicago City Ry. Co. et al. (Ill.).... Warehouse.-Coal dealer selling retail and storing only for purpose of immediate sale was not engaged in business of storage within the meaning of the act-it is not the magnitude of the business, but the manner of its conduct which controls-"storage" is not properly applied to merchandise which a merchant has on hand for immediate sale and disposition. In re Roberto Roberto vs. John F. Schmadeke, Inc., et al. (N. Y.)............... 265 Warehouse.If there is some evidence in support of injury, finding of Industrial Commission in favor of employee must be conclusive-sixteen year old boy injured while working in basement of retail store where goods for sale by his employer were temporarily stored was entitled to no compensation, the employer's principal business being sale and not storage. Walsh vs. F. W. Woolworth Co. (N. Y.)... Wilful Misconduct. Wilful Misconduct.-Servant not denied relief because injury has been superinduced by mismanaging duties of employment, unless it amounts to wilful misconduct-female teacher was not as matter of law guilty of wilful misconduct in shoving aside 458-pound desk to get necessary book for case. Elk Grove Union High School Dist. vs. Industrial Acc. Commission of State of California-In re Hoag (Cal.).... Wilful Misconduct,-Determination that an accident did or did not arise out of or in course of employment, or whether, it was due to wilful misconduct is a legal conclusion rather than an ultimate fact, such as is required by the act. Inland Steel Co. v. Lambert (Ind.).. Wilful Misconduct.-The act presuming that injury was not caused by employee intentionally or from intoxication is inapplicable on question whether injury arose within employment-night watchman who went asleep and fell through an open door not injured within line of employment. Gifford v. T. G. Patterson, Inc., et al. (N. Y.)... Wilful Misconduct.-Evidence sufficient to support conclusion that loss of claimant's eye was not due to unreasonable or wilful misconduct. Riley v. Mason Motor Co. et al. (Mich.). Wilful Misconduct.-Fact that deceased was violating city ordinance does not bar claim for compensation, for it merely shows negligence and deceased had permission of a railroad employee to make the attempt he did to secure his tools and overalls. Mallers v. Industrial Board of Illinois et al. (Ill.) 261 143 347 434 406 522 590 649 Wilful Misconduct.-The wording of the act indicates by its language that other than enumerated causes of injury may be included in the term "wilful misconduct." Northern Indiana Gas & Electric Co. v. Pietzvak (Ind.) Wilful Misconduct.-Trucker attempting to leave moving elevator while playing with elevator operator, held, such conduct as evidences reckless indifference to safety. Feda v. Cudahy Packing Co. (Neb.).. Wilful Misconduct.-Under that part of section 1, relieving the employer from liability for compensation where injury results directly from wilful failure of employee to use guard or protection furnished for his use pursuant to any statute or by order of state labor commissioner, mere voluntary and intentional failure to use such safety appliance does not necessarily render the omission wilful. Wilful failure contemplated carries with it the idea of premeditation, obstinacy and intentional wrongdoing. If there be any evidence reasonably tending to support finding of board that failure to use guards or appliances was not wilful, action of board will not be disturbed. Wick et al. v. Gunn et al. (Okla.). 716 Wilful Misconduct.-Where usual means for washing up failed one evening servant was not guilty of wilful misconduct or intentional self-inflicted injury within the act in going to another departmenut to heat water where he was injured. In re Ayers (Ind.). Wilful Misconduct.-It being claimed that employee was injured by getting caustic in his eye because he did not wear glasses, thus violating rule of the employment, on evidence that caustic was spilled on employee's back when he was stooping down to pull his shirt off over his head, Industrial Commission had jurisdiction to determine that failure of employee to wear glasses was not cause of injury. Great Western Electro-Chemical Co. et al. v. Industrial Acc. Commission et al. (Cal.).... 491 Witness. Witness.-Board judges of credibility of witnesses. Nagy v. Solvay Process Co. (Mich.) Words and Phrases. 559 ..1049 Words and Phrases.-The word accident as used in the act is used in its popular sense and means any unlooked for mishap and any untoward event not expected or desired. Haskel & Barker Car Co. VS. Brown et al. (Ind.).. Words and Phrases.-Wages as used in statute relating to expected increases in wages refers to those earned in particular employment, out of which injury arose. In re Gagnon-In re Massachusetts Bonding & Ins. Co. (Mass.) 48 84 205 Words and Phrases.-"On, in, or about" factory or establishment does not authorize recovery against owner of packing house on account of injuries received by truck driver while engaged in delivering meat to customers. The term "plant" is quite different from "factory." Hicks vs. Swift & Co. (Kansas) Words and Phrases.-Statute makes no definition of "employer" or "employee" different from common-law understanding of those words. Kackel et al. vs. Serviss In re Employers' Liability Assur. Corp., Limited (N. Y.).... 235 Words and Phrases.-The words "storage of all kinds and storage for hire," imply that an employer storing his own property may be engaged in the In hazardous employment of storage, but the determining question is whether he was engaged in the employment" of storing his own property. re Roberto Roberto vs. John F. Schmadeke, Inc., et al. (N. Y.).. Words and Phrases.-The act providing compensation for a non-resident father "or" mother, the word "or" does not restrict compensation to one parent. If both have been supported as required, but means "either." State Industrial Commission v. McCormick et al.-In re Cassella et al. (N. Y.) Words and Phrases. "Enterprise" defined. Hahnemann Hospital v. Industrial Board of Illinois et al. (I.). Words and Phrases.-"Wilful failure" carries with it the idea of premeditation. obstinacy and intentional wrongdoing. Wick et al. v. Gunn et al. (Okla.) Words and Phrases.-Employee whose sole duty was to feed bundles to combined thresher and cleaner was not a "farm laborer." Vincent v. Taylor Bros. In re London Guarantee & Accident Co., Ltd. (N. Y.).. Words and Phrases.-The words "accident" and "injury" as used in Workmen's Compensation Act are not synonymous, but the accident produces the injury and in point of time they are concurrent. Cooke v. Holland Furnace Co. et al. (Mich.) Workmen's Compensation Aid Bureau. 265 436 754 716 692 994 Workmen's Compensation Aid Bureau.-Act creating Workmen's Compensation Aid Bureau does not provide for new remedy or impair contracts; it only prescribes new method of procedure for enforcement of existing contracts. Grew v. Trainor et al (N. J)................ 840 Workmen's Compensation Aid Bureau. The bureau does not impair the obligation of a contract between employer and employee entered into after the act took effect. Murphy v. George Brown & Co. (N. J.)............. 842 |