meaning. Waldum v. Lake Superior Terminal & Transfer Ry. Co. et al.
(Wis.)
Provisions of act should be liberally construed. Holt Lumber Co. et al. V.
Industrial Commission of Wisconsin et al. (Wis.)..
Provisions of Compensation Act which benefit both master and
be liberally construed without regard to technical rul s.
Portland Cement Co. (Iowa)....

servant should
Rish v. Iowa

$349. RETROACTIVE OPERATION OF STATUTES.
Amendment as to appeals from order of Industrial Commissioner taken after
July 1 applies to injuries received before as well as those received after
July 1, when statute became effective. Rish v. Iowa Portland Cement
Co. (Ia.)
Section relating to reduction of compensation 15 per cent in case of willful
failure to obey safety rule has no application to accident occurring before
statute was in force. Frint Motorcar Co. v. Industrial Commission of
Wisconsin et al. (Wis.)..

671

549

463

463

399

351.
RIGHT TO ELECT, AND EFFECT OF ELECTION IN GENERAL.
Under Compensation Act it is elective both with employee and employer
whether they shall become subject to its terms-employer who chooses
to become subscriber is liable to employees of his subcontractor, situated
with reference to work on employer's premises and subject to peculiar
conditions thereof, having elected to become so liable. Duart v. Simmons
(Mass.)

In view of section of act as to employer electing to come under act being
relieved of other liability and other sections which state conclusive pre-
sumption that mine operator is within act unless he elects otherwise.
where injured miner sued, and, when demurrer was sustained to declara-
tion, amended, after cause was barred, by adding allegation that employer
had elected not to come within act, he could not recover; the original
declaration being not merely defective, for the allegation that employer
is not covered by act is essential to the statement of the cause of action
at common law. Davis v. St. Paul Coal Co. (Ill.).
Servant, having accepted compensation under Act can have no standing in
court to assert employer's further liability to him for exemplary damages
on ground of gross and reckless negligence-Act does not require employer
to take affirmative in matter of fixing standards of safety, nor does fail-
ure to do so work a forfeiture of protection of the Act. Stricklen v.
Pearson Const. Co. (Ia.)

136

244

291

671

671

Supreme Court must assume that Legislature adopted with full understand-
ing of its legal effect, language of Statute, providing that certain sections,
shall not apply to employees switching freight cars for railroad company,
unless both employer and employee have accepted provisions of act.
Waldum v. Lake Superior Terminal & Transfer Ry. Co. et al. (Wis.)....
Defendant railway engaged chiefly in switching cars of other companies,
held, to have been at time plaintiff was injured while engaged in switch-
ing box cars operating a steam railroad as common carrier," within Com-
pensation Act, denying compensation in such case unless both employer
and employee shall have accepted provisions of act in writing. Waldum
v. Lake Superior Terminal & Transfer Ry. Co. et al. (Wis.).
Administrator of deceased's servant's estate cannot maintain action against
master for servant's wrongful death where such servant had accepted
Compensation Act. Penn's Adm'r. v. Bates & Rogers Const. Co. (Ky.) 731
Employer, not included in any classes enumerated in Compensation Act may,
by operating under act, free himself from common-law statutory liability
for injuries arising out of employment. Wangler Boiler & Sheet Metal
Works Co. v. Industrial Commission et al. (II.)..
That employer had posted notices of election not to operate under act, though
such posting was insufficient, held not to estop employer from denying
that it had effectually rejected act. Reynolds v. Chicago City Ry. Co.
(III.)

Remedy under act is exclusive, no cause of action arising at common law or
under Employer's Liability Act, except where employer has failed to se-
cure payment of compensation. Nulle et al. v. Hardman, Peck & Co.
(N. Y.)
Where injured employee under act brought action against married woman
and suit was dismissed claimant, by election to sue her, is barred from,
subsequently seeking award under act against husband and wife_jointly,
evidence showing that wife was in fact employer. Crinieri v. Gross et
ux. (N. Y.)
Though stevedore presented claim and accepted compensation under State
Compensation Law held that as Commission was without jurisdiction
the acceptance of compensation is not bar to libel in admiralty, the pay-
ments if made by employer being deductible from recovery and if made
by state to be treated as gratuities. Neumann v. Morse Dry Dock &
Repair Co., Inc. (U. S.)...

§ 352.

617

608

343

349

562

WILLFUL OR INTENTIONAL ACTS OR OMISSIONS OF EM-
PLOYER.

Act is not bar to common law action for damages by infant, employed in
violation of Penal Law. Wolff v. Fulton Bag & Cotton Mills (N. Y.).... 354

$ 354.

RIGHT OF ACTION AGAINST THIRD PERSON.
Section 5 of Compensation Act gives injured employee statutory action or
proceeding against employer for compensation and also for damages
against wrongdoing third party causing his injuries, and where such
person is not estopped by her acceptance of compensation already pro-
vided for her, nor by her participation in arbitration proceedings to de-
termine her compensation, nor by other actions constituting ratification
or acquiescence, she may prosccute her action against both employer
and wrongdoing third party, and she is not required to choose between
compensation allowed and damages which she may recover, until action
is tried and determined, but she is not entitled to recover both damages
and compensation-the word "recover" means to "get," "procure,"
"obtain," and the like and provision concerns itself with actual payment
and is not limited to recovery of judgments upon which nothing may
be realized. Swader v. Kansas Flourmills Co. et al. (Kan.)...........
Where employee who as well as employer has elected to come under act is
injured by third person, who is not under act, employee need not elect
between compensation under act and damages at common law, but may
prosecute both actions at same time. Gones v. Fisher (Ill.)....

§ 356.

COMMON-LAW DEFENSES ABOLISHED.
Immaterial whether risk was assumed by acts of employee or by his con-
tract of employment. Bay State St. Ry. Co. v. Rust (U. S.).
Employer who has elected not to accept Compensation Act has waived its
right to interpose common-law defense of assumed risk. New Staunton
Coal Co. v. Fromm (Ill.).

§ 357.

129

596

432

PERSONS ENTITLED TO ELECT.
Plaintiff may have been under Compensation Act by reason of his employer's
election, is insufficient to place him under act as amended, his employ-
ment having been intermittent and there having been, no election by
him under Statute requiring election by both employee and employer.
Waldum v. Lake Superior Terminal & Transfer Ry. Co. et al. (Wis.).... 671
Heir who is not sui juris cannot waive right of action by application for
award, or vice versa under Industrial Commission Act, being incapable in
law of making election-mother by applying for compensation for father's
death does not waive minor children's right to brng acton for damages.
Garfield Smeltng Co. v. Industrial Comission of Utah (Utah)....

$358.

...

531

136

FORM AND REQUISITES OF ELECTION (INCLUDING IMPLIED
ELECTION).
Subcontractor's employee by failing to give notice to chief employer, on
whose vessel he was to work, that he claimed his right of action at com-
mon law for any injuries decided to become bound by act, and to waive
common-law right. Duart v. Simmons (Mass.)...
Stevedore injured while loading vessel who was entitled to remedy afforded
by State Act, held not to have elected that remedy by signing at request
of attorney the notice to employer contemplated by Compensation Act
and to be entitled to sue in admiralty. Siebert v. Patapsco Ship Ceiling
& Stevedore Co. et al. (U. S.)......
Where employer which became subscriber failed to give written notice to em-
ployees provided for by Statute, it was not binding on injured employee
who had no notice that employer had adopted the act. Batson-Milholme
Co. v. Faulk (Tex.)..

219

805

Compensation Act permits election only by filing and posting notices not to
be bound 60 days before expiration of calendar year a failure to post
such notices within that time is election to comply with provisions of act
for ensuing calendar year. Reynolds v. Chicago, City Ry. Co. (Ill.).... 608

Digging trenches with shovel in plumber's business of making private con-
nections with city sewers is "excavating" under statute naming such
work as extrahazardous-it being more dangerous than ordinary occupa-
tion though there be more hazardous excavations. Scully v. Industrial
Commission of Illinois (Ill.).....

"Employee" as used in act as "every person in service of another under con-
tract of hire" is to be broadly construed. Marshall Field & Co. v. Indus-
trial Commission of Illinois et al. (Ill.)..
Superintendent of wholesale dairy route, who left employer's place of
business to instruct new driver, traveling by street railway, and who,
upon alighting from car was killed by automobile, was not at such time
engaged in "hazardous" occupation, within act or in service of em-
ployer whose principal business was hazardous. Balk v. Queen Dairy
Co. et al. (N. Y.).

Under act coal yards were not classified among "hazardous employments"-
laborer, injured by coal falling on him while unloading coal in rail-
road car within yard of employer, was not "operating a wagon" within
act as to "hazardous employment." In re Hassen-Appeal of United
States Casualty Co. (N. Y.).

80

105

177

181

Laying carpets is not "upholstering" within any of the definitions given the
word by standard lexicographers and especially not within act. Stradar
v. Stern Bros. et al. (N. Y.).......
One who was engaged in no other business than managing, maintaining and
keeping in repair some 12 or 15 buildings, all, except 1 or 2 owned by his
children, belonging to him, keeping a foreman for the purpose, was en-
gaged in the "business of maintaining buildings" within the act. Storrs.
v. Industrial Commission et al. (I.)...
Child Labor Law, the Women's Ten Hour Law, the Health. Safety, and
Comfort Act and a city ordinance requiring persons conducting meat
markets to take out licenses, and imposing penalties for false weights,
do not bring employer conducting store and butcher shop within Com-
pensation Act by reason of section 3, cl. 8, applying the act to persons
engaged in enterprises in which statutory or municipal ordinance regu-
lations are imposed for protection of employees. Deitrich v. Industrial
Board et al (III.).

191

238

248

743

682

Administrator or executor, if employer of labor, may become subscriber in-
stead of remaining under common law subject to disadvantages imposed
by Statute. Keohane's Case In re McCarthy.
In re Massachusetts
Bonding & Ins. Co. (Mass.)
Where one carrier employed watchman at crossing and another company
operating a parallel track paid one-half of salary, relation of employer
and employee within meaning of act existed between each railroad and
watchman. San Francisco-Oakland Terminal Rys. v. Industrial Accident.
Commission (Cal.)..
Receivers of railroad company are presumed to be operating under Compen-
sation Act until they elect not to come within its provisions, though
before their appointment corporation had made such election-receivers
are "employers." Unrine v. Salina Northern R. Co. et al. (Kans.).... 633
Where partnership acted as agent in making contract of hiring with claimant
for compensation and failed to disclose the principal and claimant was
led to contract under belief it was with firm as principals, claimant. on
learning facts, could not treat his contract as binding on either the firm,
or their principals, at his election and having elected to hold firm they
must answer to him. Scott v. O. A. Hankinson & Co. et al. (Mich.).....
Night engineer, of piano factory was an "employee in hazardous employ-
ment." Nulle et al. v. Hardman, Peck & Co. (N. Y.).....
Act does not extend to employee on vessel in navigable waters and Industrial
Commission cannot collect from employer premiums on account of such
employees-employees of corporation engaged in dredging upon naviga-
ble waters, employed solely on land, fall within act-where employees
engaged partly on land and partly on dredges subject to admiralty juris-
diction, Industrial Commission was entitled to collect premiums to be
paid in proportion to time employees spent on land and on navigable
water. Puget Sound Bridge & Dredging Co. v. Industrial Ins. Commis-
sion et al. (Wash.)...

759

343

407

... 544
Switchman injured while engaged in intrastate commerce; his only remedy is
under state act. Ward v. Erie R. Co. (N. Y.)
363
When Compensation Act which applied to employees of railroad company
was amended so as to exclude employees of all railroad companies operat-
ing steam railroads as common carriers. intent was to exclude companies
organized as railroad companies and doing business as common carriers.
Waldum v. Lake Superior Terminal & Transfer Ry. Co. et al. (Wis.).... 671
In determining whether relationship of employer and employee existed gen-
eral law as well as Compensation Statute itself must be considered-
definitions of same under Compensation Law are broad enough to include
both general and special employer. Employers' Liability Assur. Corpora-
tion, Limited, of London, England, v. Industrial Accident Commission
(Cal.)
Where partnership furnished men and foreman to cement company who were
to be paid by partnership with funds furnished by cement company, part-
nership retaining power to hire and discharge, men were under joint
control of partnership and company, who were jointly associated in carry-
ing out the work. Employers' Liability Assur. Corporation, Limited, of
London, England, v. Industrial Accident Commission (Cal.)
Illegal contract of employment does not destroy operation of act. Frint Mo-
torcar Co. v. Industrial Commission of Wisconsin et al. (Wis.).
Cause of action by taxicab driver for injuries received as result of defective
wrench furnished by employer does not fall within Employers' Liability
Act. Ridley v. Portland Taxicab Co. (Ore.)..
Machinist regularly employed by master in repairing motorcars injured while
present to repair its cars which were racing, was within regular employ-
ment. Frint Motorcar Co. v. Industrial Commission of Wisconsin et al.
(Wis.)

---

....

362.
CASUAL EMPLOYMENT.
"Casual" as applied to employment in act has reference to contract for service
and not to particular item of work being done at time of injury. Scully
v. Industrial Commission of Illinois (Ill.) ...
Character of contract of employment as to whether it was casual or not was
fixed by contract of hiring-structual ironworker sent from union head-
quarters, with three other members to complete job requiring only three
or four days' work and who was employed by railroad for particular job
only, was engaged in "casual employment." Chicago Great Western R.
Co. v. Industrial Commission of Illinois et al. (Ill.)............

40%

399

520

399

30

14

Construction of buildings referred to, held within "usual course of em-
ployer's business" within meaning of act. State ex rel. Lundgren v.
District Court of Washington County (Minn.)....
Under Act providing that term "employee" shall not include any person
whose employment is but casual, a carpenter temporarily employed as
helper on transfer wagon, held not an employee within act. Thede Bros.
et al. v. Industrial Commission et al. (Ill.)....
$ 363.

FARM LABORERS.

Under Compensation Act if worker upon farm may be reasonably classified as
one engaged in agriculture, his employer is not liable-workman whose
sole duty is to repair wagons in shop operated on farm is "engaged in
farm labor." Miller & Lux Incorporated v. Industrial Accident Com-
mission of California (Cal.)...

Injury to farm hand, assisting in unloading ice from sleigh to farm ice-
house, was not within act where ice was used for farm purposes and not
for pecuniary gain, injured employee being farm laborer. Mullen V.
Little (N. Y.)...

Borough policeman is an "employee" of borough within the act. McCarl et
al. v. Borough of Houston (Pa....)...
In proceeding by street sweeper for compensation for injuries received when
run down by automobile, city traffic ordinances are not "ordinances" with-
In Cmpensation Act and liability cannot be predicated on ground that
employment was one in which municipal ordinances were imposed for
protection of employees and public cities and incorporated villages are
"employers"-city street paved with asphalt is a "structure" within the
act and sweeping and cleaning of such street is "repairing or maintain-
ing." City of Rock Island v. Industrial Commission of Illinois et al.
(In.)

365.

159

242

567

500

789

592

... 136

EMPLOYEES ENGAGED IN INTERSTATE COMMERCE.
Terms of Compensation Act are broad enough to include employee working
in connection with discharge of cargo of vessel engaged in interstate or
foreign commerce, only master and seamen of vessels so engaged being
excluded. Duart v. Simmons (Mass.)...
Under act as amended exempting railroads which do an interstate business,
employee of such railroad, though bulk of its business is intrastate, is
not entitled to compensation, but can recover only in accordance with
latter part of the amendment which enacts within state the provisions
of the federal act. Spokane & I. E. Ry. Co. et al. v. Wilson et al.,
Industrial Insurance Commission (Wash.)
With respect to employer engaged in interstate commerce, section 52 of act
applies provisions of act unconditionally to those of his employees whose
work is wholly intrastate and clearly separable and distinguishable from
work of interstate commerce, though same section, with respect to em-
ployees who are engaged partly in intrastate and interstate commerce,
provides that act shall apply only upon condition that employer and such
employees voluntarily accept provisions of act by formal writing ap-
proved by commissioner. Suttle v. Hope Natural Gas Co. (W. Va.).....
Evidence showed that bolt upon which plaintiff was working when injured,
was put on particular engine, engaged in interstate commerce. Atlantic
Coast Line R. Co. v. Woods (U. S.).......
Servant engaged in wheeling bricks from freight car on siding to freight
terminal in course of construction was not engaged in interstate com-
merce and could not recover under federal Employers' Liability Act,
when injured through the negligence of fellow servant. Matti v. Chicago,
M. & St. P. Ry. Co. (Mont.)..
Member of repair gang killed while passing from one car to other, was en-
gaged in "interstate commerce.' Southern Pac. Co. v. Industrial Accident
Commission (Cal.)

State Employers' Liability Act as amended by section 30 or original Act ex-
cludes its application to any employer acting as a common carrier in in-
terstate commerce by railroad, does not apply where deceased servant's
employer was so engaged, regardless of whether servant's work was a
part of railroad's interstate commerce. Bergeron v. Texas & P. Ry Co.
(La.)
Where interstate and intrastate carriers had parallel tracks and each paid
half of salary of watchman, and watchman was killed by train of in-
terstate carrier at time when train also came by for intrastate carrier,
jurisdiction of state Industrial Commission was not lost as to intrastate
carrier by reason of federal act. San Francisco-Oakland Terminal Rys.
v. Industrial Accident Commission (Cal.).

Action by administrator of boy under 16 employed in violation of Labor Law
and killed while engaged in employment enumerated in Compensation Act,
Art. 1., Sec. 2., Group 22, brought for benefit of father and next of kin
cannot be maintained, Sec. 11 of later act providing exclusive compensa-
tion. Robilotto v. Bartholdi Realty Co. (N. Y.)..
Department store company, by its vold contract employing girl under 14 years
of age, could not limit its liability for injury to her to compensation fixed

201

205

6

163

12

305

682

59

by Compensation Act, to which she was unable to give assent-mis-
statement by girl of age in order to secure employment is no defense to
employer, sued for injury to her, and claiming only remedy is under
Workmen's Compensation Act, despite illegality of employment; pro-
hibition against employment of child under 14 being absolute. Sechlich v.
Harris-Emery Co. (Iowa)...
Held that the charge adopted was proper test of vice-principalship and a
new trial should not have been granted because of alleged error in
charge. Gutmann V. Anderson (Minn.).....
Unless employer has age and employment certificate provided for by Statute,
minor between ages of 14 and 16 is not working at an age legally permit-
ted under laws of state-where employer who has received from proper
school committee and has in his possession a certificate in form substan-
tially as required by law, he is not required to investigate accuracy, but
is entitled to rely upon it as rendering employment of child named as be-
ing legally permitted and said child is sui juris as an employee. Tag-
linette v. Sydney Worsted Co. (R. I.)....

8`367.

126

765

662

75

24

95

INDEPENDENT CONTRACTORS AND THEIR EMPLOYEES.
Where contract provided that buyer of timber should reimburse seller for
wages paid scalers, not to exceed $50 per month each, scaler employed
by and who worked under direction of seller at salary of $70 per month,
was not employee of buyer within act. Kirby Lumber Co. v. McGilberry
et al. (Tex.)
Principal test as to whether one is employee or independent contractor lles
in degree of control retained and exercised by person for whom work is
being done-where employer of drainage district supervised ditch-cleaning
operation as to results only, while person injured operated his own ma-
chinery, etc., he was an independent contractor. Meredosia Levee &
Drainage Dist. v. Industrial Commission of Illinois et al. (Ill.)........
Contract providing for digging tunnel for express consideration, which gave
party desiring tunnel dug right to withhold 20 per centum of compen-
sation until work was completed, but contained no reservation of con-
trol of work more than necessary to insure its producing results provided
for, did not create relation of master and servant-mere fact that in-
dependent contractor followed directions of owner of mine regarding
work of digging tunnel did not change relation of master and servant. In-
dustrial Commission of Colorado et al. v. Maryland Casualty Co. (Colo.)..
Painter agreeing to paint three smokestacks for corporation was independent
contractor where he had absolute control of himself and helper as to time
when he was to begin work and as to where he should commence, un-
hampered by directions from corporation and not subject to its dis-
charge-In relation of employer and employee, employer had control and
direction, not only of work and its performance and results, but of its
details and methods and may discharge employee disobeying such con-
trol-that independent contractor is directed by corporation during per-
formance of work does not affect his status as such-that he was furnished
paint and helper by corporation does not affect his status. Litts et al. v.
Risley Lumber Co. et al. (N. Y.)....
170
Claimant for compensation for injuries from town, who engaged in business
of stable keeping, teaming and jobbing, let to town for work on roads,
cart, horses and himself for undivided price of $6. per day, held "in-
dependent contractor." Winslow's Case.. In re Town of Mansfield (Mass.).741
Driver of team hired out by owner, his general employer, to work for another,
remains in employ of general employer so far as concerns management
and care of horses-owner of teams and horses who let them with drivers
at hourly rate, paying drivers and driving team himself, who was injured
in management of horses of his team, not entitled to compensation from
company or insurer. Centrello's Case. In re J. K. Ryan Co. In re Trav-
elers' Ins. Co. (Mass.)

One employed to remove trees preparatory to grading street to be paid in
lump sum, he furnishing his own tools, controlling his own time, etc.,
he was a "contractor." Storm v. Thompson (la.)...
Where person lets out work to another, and contractee reserves control over
work of workmen, method of work, etc., relation of contractor and con-
tractee exists and not that of master and servant. Smith v. State Work-
men's Ins. Fund (Pa.).

Compensation Act must be presumed to have used the word "contractor" in
sense it is commonly employed, and in which it has been defined by the
courts. Storm v. Thompson (Ia.)...

369.

....

INJURIES OCCURRING IN FOREIGN STATE.
Board obtained jurisdiction by application of wife alleging employment of
husband and injury causing death suffered in course of employment,
although injury occurred while employee was outside of state. Fried-
man Mfg. Co. v. Industrial Commission of Illinois et al. (Ill.).....
Compensation Act of Illinois does not authorize compensation for death of
person by drowning in Ohio River while at work on occasion attached to
river bed outside of state boundary. Union Bridge & Construction Co.
v. Industrial Commission et al. (III.)..
Where native of New York, employed by New York corporation met death
while working for corporation in New Jersey, held, New York act was
applicable, it not appearing that it was contemplated that sole activities

740

470

374

470

21

690