§ 105. Mining-Quarrying.-The word "mining" is often used in a very broad sense, and in such sense it includes quarrying, as, for instance, of slate from an open quarry.92 The term includes the whole mode of obtaining metals and minerals from the earth.93

94

"Taking ore from the surface of the earth or shallow pits is as much mining as if it were dug from deep mines. It is sometimes expressly used as covering and including sinking, drilling, boring, and operating wells for petroleum and natural gas.95 The procurement of coal by digging in the earth is termed "mining."'96 "Mining operation" has to do with the working of a mine, and a "mine," defined as an excavation in the earth for the purpose of getting metal ores or coal, does not include an oil well.97

"Quarry" is not properly applicable to the comparatively slight excavation on land made primarily for purposes of construction there on, and not primarily for the purpose of disposing of the rock, or stone or other material taken out. It is similar to a mine, in the sense that the material removed, be it mere rock, or stone, or valuable marble, is removed because of its value for some other purpose and in the sense that it is not removed for the purpose of improving the property from which it is taken. It is distinguished from a mine in the fact that it is usually open at the top and front, and the ordinary acceptation of the term, in the character of the material extracted.98

"Pits" is synonymous with "Quarry," signifying a large opening in the earth from which rock or ores are taken. So,

99

92. Burdick v. Dillion, 144 Fed. 737, 75 C. C. A. 603; In re Mathews Consol. Slate Co., 144 Fed. 724.

93. Williams v. Toledo Coal Co., 25 Oreg. 426. Coleman v. Coleman, 1 Pearson (Pa.) 470.

94.

95.

Consumer's Gas Trust Co. v Quinby, 137 Fed., 882, 70 C. C. A. State v. Indiana & Ohio O., G. & M. Co. 120 Ind. 575, 22 N. E. 778, 6 L. R. A.579.

220;

96. Escoot v. Crescent Coal & Nav. Co., 56 Oreg. 190, 106 Pac. 452. 97. Guffey Petroleum Co. v. Murrel, 127 La. 466, 53 So. 705. 98. Ex parte Kelso, 147 Cal. 609, 82 Pac. 241, 109 Am. St. Rep. 178. 99. Guffey Petroleum Co. v. Murrel, 127 La, 466, 53 So. 705.

"coal bed" may be used in the sense of "quarry."1 "1 "Working the quarry" means the workng of the pit, and the doing of any work necessary for the proper and convenient use of the pit, such as the removal of earth, debris, water, ice, or snow, would be working the quarry as truly as the blasting and removal of the slate."

§ 106. Night Watchman.-Where a night watchman's duties included the firing of boilers and filling of glue vats he was an employee engaged in a hazardous employment. A nightwatchman in a bakery at a time when it was not in operation was not engaged in a hazardous employment.*

§ 107. Oil and Gas Wells.-Prior to the amendment of 1916, to the New York Act, the operation of oil or gas wells was not considered a hazardous occupation."

§ 108. On, In, Or About. The words "on, in, or about," as appear in some of the acts, are used in reference to area. The act may sometimes apply in a particular case by the area of the factory, plant or work following or continuing with the employee to the place of accident on account of the nature of the work."

By the Workmen's Compensation Act of England, 1897, it was necessary that the employment should be "on, in, or about" the works of the employer. The words were held to refer to locality, and restricted the liability of the employer, confining it to such accidents as happened on, or in, the premises where the business

1. Hoysradt v. Delaware, L. & W. R. Co., 151 Fed. 321.

2.

3.

Miller v. Chester Slate Co., 129 Pa. 81.

Hellman v. Manning Sand Paper Co., N. Y. App. Div.-, 162 N. Y. S. 335, B. I. W. C. L. J. 1335.

4. Fogarty v. National Biscuit Co., N. Y. App. 161 N. Y. S. 937, B. I. W. C. L. J. 1379.

5. Tillburg v. McCarthy & Townsend, 170 App. Div. 593, 166 N. Y. S. 878; Bacon v. McCarthy & Townsend, 179 App. Div. 965, 166 N. Y. S. 880, 16 N. C. C. A. 675, Nor a butter maker. Pardy v. Boomhower GroDiv. 347, 164 N. Y. S. 775, 16 N. C. C. A. 676, 6. Atkinson v. Plumb, (1903), 1 K. B. 861, 88 L. T. 789, 72 L. J. K. B. 460, 199 L. Rep. 412, 51 W. R. 516, 5 W. C. C. 106.

cery Co., 178 N. Y. App.

of the employer was carried on, or at places in close contiguity thereto. Several attempts were made to induce the courts to construe the words as applying to the description of work mentioned, and thus including the business carried on instead of the place where it was carried on. These attempts were unsuccessful, for in Powell v. Brown (1899), 1. Q. B. 157, 79 L. T. 631, 68 L. J. Q. B. 151, 15 T. L. Rep. 65, the court declared its view that the words must refer to locality, and locality only. The House of Lords subsequently adopted the same view in Black v. Dick Kerr & Co., (1906) A. C. 325, 94 L. T. 802, 75 L. J. K. B. 569, 22 T. L. Rep. 548.

In proceedings under the Kansas workmen's compensation act it was held that where a miner was killed while passing across a railroad track enroute from one mine to another at the direction of his foreman he was not killed in the course of his employment in a hazardous occupation, where there was no showing that there was any connection between the operation of the two mines other than that of ownership, or that the employee had taken a previously defined route or that the accident happened to the deceased while he was working "on, in, or about" a mine within the meaning of the act.8

§ 109. Same-Plant-Factory.-Where an employee engaged in driving a delivery truck from his employer's plant in Kansas City, Kansas, to its customers in that city and in Kansas City, Missouri, and was injured in Kansas City, Missouri. In holding that there could be no recovery unless plaintiff was injured "on, in, or about" the defendant's factory or packing house, observing that the word "about" was one of locality and not of mere association or connection the court said: "An effort is made to bring the case within the statute, as it has already been construed by the argument that the truck which the plaintiff was driving, being a portion of the equipment used in conducting the defend

8.

7. Ruegg, Employers' Lia. and Workmen's Comp., (8th ed), 374-375. Bevard v. Skidmore Patterson Coal Co., 101 Kan. 207, 165 Pac. 657, 16 N. C. C. A.692; Alvarado v. Flower Bros. Rock Crusher Co., Kan.1921, 197 Pac. 1091.

ant's business, was itself a part of the factory. To support this view expressions are quoted tending to show that the truck was a part of the plant. The term 'plant,' however, is quite different from 'factory.' It may well apply to appliances used in carrying on the business, wherever situated. 'Factory' by the statute is restricted to the premises where (mechanical) power is used in manufacturing or preparing articles for sale. The truck was an instrument for the distribution of the finished product rather than of its manufacture or preparation. While in charge of the truck, after the meat had been prepared, the plaintiff was not 'within the danger zone necessarily created by those peculiar hazards to workmen, which inhere in the business of operating the packing house.""

§ 110. Operation-Engines.-One engaged in firing a boiler used for heating purposes in an apartment house comes within that class of employees enumerated as being engaged in hazardous occupations.10

§ 111. Pile Driving. The driving of sheeting down into the sand for the protection of municipal baths is a hazardous occupation, and the fact that at the moment of the injury the employee might have been doing something more incidental to the making of baths than the driving of the sheeting into the sands, is immaterial.11

§ 112. Plastering.-Plastering an apartment house was held not to be a hazardous occupation.12

§ 113. Pleasure Club. The court in holding that a corporation, organized for the purpose of acquiring a hunting preserve was within the act when it engaged in a hazardous occupation

9. Hicks v. Swift & Co., 101 Kan. 760, 168 Pac. 905, 16 N. C. C. A. 634. 10. Siegreth v. Goldberg, 175 App. Div. 452.

11. Mazzarisi v. Ward & Tully, 170 App. Div. 868, 156 N. Y. Supp. 964, 16 N. C. C. A. 674.

12. Solomon v. Bonis, 181 App. Div. 672, 167 N. Y. S. 676, 16 N. C. C. A. 675.

said: "I cannot believe that any membership corporation which sees fit to engage in a hazardous business carried on by it for pecuniary gain, can be heard to plead, in defense of a claim for compensation by an employee injured in such employment, that it had no legal right to engage in such employment, or to employ its injured or deceased employee therein. The fact that engaging in such occupation was ultra vires furnishes no immunity whatever, either to the employer or insurance carrier. "'13

In affirming the appellate division's decision the court of appeals said: "The commission has found that the appellant was engaged in the operation of a country club and in connection therewith in the business of ice harvesting, forestry and logging; that it conducted this business for pecuniary gain; that Uhl was at the time of his death employed by it as a lumberman and while so employed was killed. We think there was ample evidence to support these findings. Whether a club or an individual owning a tract of woodland is or is not engaged in forestry and logging for pecuniary gain is a question of degree. It could not be said that the owner of a city lot who cut a tree and sold the timber was so engaged. Nor where a farmer here and there felled trees on his farm. But where the owner of a large tract of woodland cuts and sells the lumber upon it regularly, although that work may be incidental to his main business, he comes within the definition of the statute.

9914

A Golf Club maintained exclusively for golf and social purposes, supported by dues, conducting its restaurant at a loss, and not declaring nor expecting to pay dividends is not engaged in a "business for pecuniary gain" and therefore does not come within the act.15

§ 114. Power Machinery.-"The Washington act does not say, nor does it imply, that every place in which power-driven

13. Uhl v. Hartwood Club, 177 App. Div. 41, 163 N. Y. S. 744, 16 N. C. C. A. 686.

14. Uhl v. Hartwood Club, 221 N. Y. 568, 116 N. E. 1000, 16 N. C. C. A. 686.

15. Francisco v. Oakland Golf Club, -App. Div.- (1920), 185 N. Y. S. 97, 7 W. C. L. J. 229.