tree without specific instructions so to do might well be regarded
as within the scope of his employment as gardner, since the
proper care thereof required such work to be done. It did not,
however, interfere with the use of the driveway, and the pruning
thereof had no connection with the work of janitor which by
any stretch of the imagination could render it incidental there-
to. Therefore the conclusion of law as found by the commission
that at the time of the injury 'the applicant employee was not
engaged in any of the occupations or employments excepted by
section 14 of the Workmen's Compensation, Insurance and Safe-
ty Act from the provisions of the said act, is without support in
the facts found. Southern Pac. Co. v. Pillsbury, 170 Cal. 782, 151
Pac. 277. The New York Compensation Act does not apply to all
employees, but to those only engaged in certain occupations there
designated as extrahazardous, while the California act applies
to all except those designated as being excluded when engaged
in certain work. This being true, the decisions of the New York
courts in like cases furnish a rule which we think should be
followed in the case at bar." The court then cited the case of
Gleisner v. Gross & Herbener, 170 N. Y. App. Div. 37, 155 N. Y.
Supp. 946 (1915), in which the court said: "Where the em-
ployee's ordinary duties and accustomed scope of activities do
not come exclusively or predominantly within the category of
enumerated employments, and only casually and incidentally
does he do work fairly falling within that category, his right to.
remuneration must hinge on a finding that he sustained injury
while actually and momentarily doing work named in the statute.
If the employer shows that the employee was not so engaged
when he met with injury, he is not entitled to reimbursement
under the statute, even though he at times did work embraced
within the statute." Also the case of Sickles v. Ballston R. S.
Co., 171 N. Y. App. Div. 108, 156 N. Y. Supp. 864, where the
claimant was employed as purchasing and sales agent by the de-
fendant engaged in the business of storing and handling fruits,
claimant being injured while buying fruit. The court said: "The
purchasing of goods and acquiring ownership thereto is not an
incident to the business of conducting a storage house. The
statute should be given a liberal interpretation, but liberality

should not be stretched into extravagance, and it seems to me that it would be highly unreasonable to hold that this claimant was injured in a hazardous employment as described and defined by the statute. It certainly was not the legislative intent, in using the word 'storage' and making it a hazardous employment, to include therein the duties of a purchasing agent." The court, therefore, held that the injury sustained by the employee in the instant case arose out of and in the course of his employment, not as a janitor, but while engaged in garden labor, which labor is included within the term horticultural labor, in doing which he was not entitled to the benefit of the act.78

§ 44. Subrogation, and Third Persons as Affected by the Acts. -Most of the American Compensation Acts provide that the injured employee may proceed either against the third person whose negligence caused the injury or against his employer for compensation. But he cannot recover from both. As a rule they also provide that the employer who has paid or is paying compensation is subrogated to the rights of the injured employee against the negligent third person. As to the amount that may thus be recovered from the third person the acts and decisions differ.

The fact that compensation acts generally provide that the employer must pay his injured employee compensation even though a third person was alone at fault, does not make them unconstitutional. Though it has been held that in so far as the California act attempts to authorize an award against a third person. not an employer it is contrary to the California constitution.80

79

78. Kramer v. Industrial Acc. Comm. of California, 31 Cal. App. 673, 161 Pac. 278 (1916). For additional cases on, see Casual Employments.

79. Stertz v. Industrial Insurance Commission, (1916), 91 Wash. 588, 158 Pac. 256; Friebel v. Chicago City Ry. Co. et al., 280 I. 76, 117 N. E. 467, 16 N. C. C. A. 390; Johnson v. Choate, 284 Ill. 214, 119 N. E 972; Peet v. Mills, 76 Wash. 437, 136 Pac. 685; Hugh Murphy Const. Co. v. Serck, Neb., (1920), 177 N. W. 747, 6 W.

C. L. J. 194.

80. Perry v. Indus. Acc. Comm., -Cal. 181 Pac. 788, 4 W. C.

L. J. 350.

It has been held under the British Act that if a workman sues a third person at common law, and is defeated, he can ask the same court to assess compensation.81 In the case of a workman injured on the premises of a third person with whom he had an agreement to accept full wages and medical service, during incapacity, but not to exceed a period of six months, it was held that this was a recovery of damages which precluded the workman from claiming compensation from his employer, as the recovery of such damages need not necessarily be by legal proceedings. So where an employee is injured by reason of the negligence of a third person and accepts a settlement from such third person, he is under most acts, thereby barred from making a claim for compensation.83 It has been held, in an action at law by a widow for a tort against a third party for damages for the death of her husband, in which she did not join or subrogate the employer, that this constituted an election of remedies, and after judgment in such action is rendered against her, she cannot thereafter claim compensation.84 Where the father of an employee, who has been killed by reason of the negligence of a third party commenced an action at law against such third party for damages, an action for death benefit must be dismissed even though filed before the termination of the action at law.85 But it has been held that the bringing of an action by an injured employee against the insurance carrier's physicians, for damages for malpractice in treating the injury does not bar the right of the employee to claim compensation.86 Where an injured servant received an award of compensation and began suit against

81. Potter v. John Welch & Son, 7 B. W. C. C. 738.

82. Page v. Burtwell, 1 B. W. C. C. 267, L. R. A. 1916A, 361, note. 83. Cook v. Employer's Liability Assurance Corp., 1 Mass. Ind. Acc. Bd. 50; Labuff v. Worcester etc., Co., 231 Mass. 170 120 N. E. 381, 2 W. C. L. J. 903; In re Cripp, 216 Mass. 586, 104 N. E. 565.

But

84. Moore v. Imperial Ice Co., 3 Cal. Ind. Acc. Comm., 353; see matter of Woodward v. E. W. Conklin & Son, 171 App. Div. 736, 157 Supp. 948.

85. Newman v. Sturgis Machine Works, 3 Cal. Ind. App Com. 256. 86. McGrath v. Hydrox Chemical Co., 3 Cal. Ind. Acc. Com. 343; Pawlack v. Hayes, 162 Wis. 503, 156 N. W. 464, 11 N. C. C. A. 752.

his physician for malpractice, it was held that the assignment of his claim, for malpractice, to the employer did not necessarily carry with it or waive further claim to compensation.87

The provision of the California Act for subrogation to the rights of an injured employee, will not be enforced in Oregon, because in Oregon a tort action is not assignable. Therefore a claim against the deceased's employer, a California corporation, deceased being a resident of that state, will not preclude the widow's recovery against the negligent third party in Oregon on the theory that the employer was subrogated to her rights, and the widow may sue the third party and recover full compensation.88

It has been held that where the driver of a truck was injured by coming into collision with a street car, and died several days later, but before his death made a settlement with and gave a release to the street car company, this did not preclude the driver's widow from claiming compensation for his death from his employer, as the right of the dependents of the employee to compensation was independent of his rights to disability benefits before death;89 that where the widow of a deceased workman sued a third person through whose negligence the workman is alleged to have been killed, this did not bar a claim of a dependent mother for compensation against the employer. That an injured workman, who executed a release to a third party whose negligence caused the injury, is not estopped from claiming compensation from his employer because the latter did not consent to the release, and he is therefore not barred from asserting his

90

87. Brown v. Fuller Co., 197 Mich. 1, 163 N. W. 492. 88. Rorvik v. Northern Pac. Lbr. Co., Ore. -, (1920), 190 Pao. 331, 6 W. C. L. J. 385; Anderson v. Miller Scrap Iron Co. et al., Wis. -, 182 N. W. 852.

89. In re Cripp v. Aetna Life Ins. Co., 104 N. E. 565, 216 Mass. 586; Williams v. Vauxhall Colliery Co., 2 K B. 433, 436; Howell v Brad

ford, 104 L. T. R. N. S. 433; Milwaukee Coke & Gas Co. v. Indus. Com., 160 Wis. 247, 151 N. W. 45.

90. In re Cahill, 173 App. Div. 418, 159 N. Y. Supp. 1060; Mercer v. Ott, 78 W. Va. 629, 89 S. E. 952; Merril v. Marietta Torpedo Co., W. Va. 92 S. E. 112, 14 N. C. C. A. 913. Contra, see Gray v. North British Ry. Co., 8 B. W. C. C. 373.

claim against the third party;91 that where an injury is caused by the negligence of a third person, and the insurance carrier of the employer has paid compensation, the right of the employee as against the third person was subrogated to the insurance carrier of the employer, and the employee then has no right of action against the third person.92

It is held in Indiana that the insurer has the right of subrogation, where the policy expressly gives it "only in the event it has paid the whole liability in any given case, and not an attempt to provide for subrogation pro tanto," citing Knaffl v. Knoxville, 133 Tenn. 655, 182 S. W. 232, Ann. Cas. 1917 C, 1181.93

And where the state fund has paid compensation to the injured servant it is entitled to be subrogated pro tanto to the right of the servant in a judgment against a third person for damages, 94

It has been held that a settlement with a third person is a bar to compensation, although in making it the employee expressly reserves his right to compensation;95 that where an employee is injured by reason of the acts of a third person and executes a release to the third person for consideration, this is a bar to a claim for compensation.96

It has been held in New York that where an employee does not recover as much in a common-law action against a third per

91. Woodward v. E. W. Conklin & Son, 171 App Div. 736, 157 Supp 948.

92. Royal Indemnity Co. v. Platt & Washburn Refining Co., (1917), 98 Misc. 631, 163 N. Y. Supp. 197; Louis Bossert & Sons v. Piel Bros., N. Y (1920), 182 N. Y. S. 620, 6 W. C. L. J. 372; Mayor and Council of Hagerstown v. Schreiner, Md., (1920), 109 Atl. 464, 5 W. C. L. J. 858; Labuff v. Worcester Counsol. Ry's Co., 231 Mass. 170, 120 N. E. 381, 2 W. C. L. J. 903.

93. Maryland Casualty Co. v. Cincinnati C. C. St. Louis Ry. Co., Ind. App. -, 124 N. E. 774, 5 W. C. L. J. 69.

94. Mayhugh v. Somerset Telephone Co., 265 Pa. 496 (1920), 109 Atl. 213, 5 W. C. L. J. 891.

95. Mulligan v. Dick, 41 Scot. L. R. 77;

Murray v. North British

Ry. Co., 41 Scot. L. R. 383, L. R. A. 1916A, note 361.

96. Gilliland v. Kearns, 1 Conn. Comp. Dec. 277; Silva v. Kopperud, 2 Cal. Ind. Acc. Com. 604; Lantis v. City of Sacramento, 2 Cal. Ind. Acc. Com. 663.