anæsthetic. It was held that his death was due to an injury arising out of the employment.36

§ 312. Carbuncle.-Where an employee who was suffering from a carbuncle, received an injury to the carbuncle before it had ripened, and thereby caused septicemia and disability, it was held that the disability was due to an accident arising out of the employment.37

It was claimed that a carbuncle which affected the spine came from a blow on the back. Medical testimony was to the effect that carbuncles are not associated with germs introduced from without, but generally, if not always, come from internal poisoning accompaning a run down condition, as was the case of this It was held that the claimant had not discharged the onus of proving that the carbuncle was caused by an accidental injury arising out of the employment.38

§ 313. Charity Workers and Persons Seeking Relief From Charity Injured.—A blind pauper suffered a crushed hand, necessitating amputation of the three middle fingers, while working in the industrial department of a charitable institution. The institution depended upon charitable aid for its upkeep. The workmen were divided into three classes and paid for their labor. The arbitrator held that since the applicant was in receipt of charitable aid, he could not be said to be a workman. Upon appeal the court of sessions held that he was a workman within the meaning of the act, and suffered an injury arising out of his employment.39

36. Cramer v. Littell, 38 N. J. L. J. 82.

37. Caine v. Greenhut & Co., 181 N. Y. App. Div. 907, 167 N. Y. S. 1091; Cutter v. Snavalin, S. D. R. Vol. 14, p. 547, Bull. Vol. 2, pg. 152; Whalen v. N. Y. & Cuban Mail S. S. Co., Bull. of Gen. Contractors Association, vol. 8, pg. 64.

38. Redmond v. Winchester Repeating Arms Co., 2 Conn. C. D., Part 1, pg. 118; Throm v. Estate of Mally, 2 Conn. C. D., Part 1, pg. 121.

39. MacGillivray v. The Northern Counties Institute for the Blind, 1911 Ct. of Sess. Cas. 897, 4 B. W. C. C. 429, 48 Sc. L. R. 811, 11 N. C. C. A. 77; Porton v. Central (unemployed) Body of London, (1909), 1 K. B. 173, 2 B. W. C. C. 296, 11 N. C. C. A. 78.

A charitable institution, undertook to provide unemployed persons with board and lodging, and occasionally gave small sums of money to persons working in the yard. A person so engaged was injured and sought compensation. The county court judge found that the institution was not carrying on a "trade or business" within the meaning of the act, and second that there was no "contract of service" between the parties within the meaning of the act. On appeal, the court without deciding the question of carrying on a "trade or business," held that claimant did not succeed in establishing a contract of service.40

A person, who sought board and lodging from the salvation army while he was seeking other employment, sustained injuries while performing work which such persons were required to render while remaining at the institution. The court holding that the business respondent was engaged in did not come within the Workmen's Comepnsation Act, said: "The stipulation filed on June 14, 1915, being the one concerning the facts in the case, does not allege facts even as much as raising a presumption that the business in which the respondent is engaged comes within any of the provisions of the law designating hazardous or extrahazardous employments. The name of the respondent, as given in the title of the case 'Salvation Army Industrial Home' barely suggests that it possibly may be engaged in some extrahazardous business that would bring it under the terms and provisions of the compensation act by operation of law; and inasmuch as there is no showing here that the business in which the respondent is engaged is extrahazardous, or that the respondent has elected to operate under the terms of the workmen's compensation act, this board has no jurisdiction. If there is any liability at all, it is in some other forum than the Industrial Board. "'41

Where an employee was injured by a fall down steps in a charitable hospital, and later died from the effects of the fall, it was held that under the statutes of the state and ordinances of the city

40. Burns v. Manchester & S. Wesleyan Mission, 1 B. W. C. C. 305, (1908), 11 N. C. C. A. 77.

41. Dery v. Salvation Army Industrial Home, Ill. Ind. Bd., (1915) 11 N. C. C. A. 79.

the operation of the hospital came within the term "extrahazardous employments," and therefore the dependants of deceased were entitled to compensation for the death resulting from an accident arising out of the employment.42

Where a charity worker fell and sustained injuries when leaving a doctor's office, where she had gone for information, it was held that the accident arose out of the employment.43

§ 314. Chauffeur.-Where a chauffeur, engaged in moving bricks, quarreled with another chauffeur as to who should load first, and was injured in a fight that ensued, which he himself. provoked, it was held that in engaging in a fight the employee placed himself within the exception of the act which denies compensation to any employee when by wilful intention he seeks to bring about the injury or death of himself or another."

Where a chauffeur, who was employed to drive a passenger to a station, arrived before train time and proceeded to drive about the town for his own and the passenger's personal pleasure, and was killed by the passenger while so doing, it was held that the death did not arise out of the employment, for in driving about town the employee had ceased to be acting within the course of his employment.45

An employee was killed in a collision with an electric car, while driving an automobile of a fellow employee with which he was not familiar. There were no instructions from the employer as to which one of the two employees should drive. The court held that, while the employee might have been guilty of negligence, still he was acting within the course of his employment and his injury arose out of the employment.46

42.

Hahnemann Hospital v. Indus. Bd. of Ill., 282 Ill. 316, 118 N. E. 767, 1 W. C. L. J. 754.

43. Gerard v. Associated Charities of San Francisco, 2 Cal. Ind. Acc. Comm. 705.

44. Stillwagon v. Callon Bros., 183 App. Div. 141, 170 N. Y. Supp. 677, 2 W. C. L. J. 379, 16 N. C. C. A. 932

45. Central Garage of LaSalle v. Indus. Comm., 286 Ill. 291, (1919), 121 N. E. 587, 3 W. C. L. J. 428, 18 N. C. C. A. 1052; Hatter v. Payne, 1 Cal. I. A. C. 647, 12 N. C. C. A. 179.

46. Maryland Casualty Co. v. Indus. Acc. Comm., 3 9Cal. App. 229, 178 Pac. 542, 3 W. C. L. J. 577.

Two chauffeurs were cleaning a garage and cars according to directions of their employer. One found a dynamite cap, and in attempting to remove a wire from it, it exploded and injured the other employee. In holding that the injury arose out of the employment the court said: "It was the duty of the employee to acquaint his employer of the finding of the cap. The attempt to remove the wire might have been careless but it was not either a sportive or a wilful act. The claimant suffered injury from a fellow employee's act while claimant was performing his duties. He was injured through the carelessness and neglect of a fellow workman, which was an accidental risk of his employment."47

Where a chauffeur got some foreign substance into his eye while driving, which destroyed the sight of his eye, the board found that the loss of the eye was due to an accident arising out of the employment.48

Where a demonstrating chauffeur was injured while driving one of the demonstrating machines of his employer, it was held that the injury arose out of the employment.49

Where claimant lent his machine to an automobile club for use in an outing for orphan children, and was injured while driving his own car to the orphanage, it was held that he was not injured in the course of his employment."

A chauffeur, employed to drive two passengers, was seen to depart and a couple of days later his dead body was found by the roadside, the circumstances tending to show that he had for some unknown reason, not that of robbery, been murdered by the passengers. It was held that such evidence was insufficient to establish that his murder was due to any risk arising out of the employment. It was also held that there is no presumption in law to the effect

47. Laurino v. Donovan, 186 App. Div. 387, 173 N. Y. S. 619, 1919, 17 N. C. C. A. 944; Rogers v. Rogers (Ind. App.), 122 N. E. 778, (1919), 18 N. C. C. A. 1039.

48. Grant v. Narlian,1 Cal. I A. C. 482, (1914), 12 N. C. C. A. 179. 49. Todd v. Drouet & Page Co., 3 N. Y. St. Dep. Rep. 351, 12 N. C. C. A. 178.

50. In re Derby, Ohio Ind. Com., (1915), 12 N. C. C. A. 178.

that a chauffeur is, by reason of his employment, subject to any special risk of being murdered.5

Where a chauffeur was killed while driving at the rate of seventy miles an hour, it was held that his act in so doing amounted to foolhardiness and would be classed as wilful misconduct.52

Where a chauffeur fractured his arm while cranking an automcbile, and later abscesses developed, it was held that the extended disability was due to the accidental injury arising out of the employment.53

Where a chauffeur was waiting for his employer's automobile to be repaired in a garage and volunteered to crank the machine and sustained a broken arm in so doing, it was held that he was serving no interest of his employer, and therefore his injury did not arise out of the employment.54

Where a truck driver, whose duties required that he take a truck back to the garage after work, allowed another to drive the truck on the way home and, while that other was driving, fell from the truck and was killed, the court held that the employee was not at the time of the injury engaged in the performance of the duties of his employment, and therefore it could not be said. that the accident arose out of the employment.55

§ 315. Concussion of Brain.-An employee fell while at work, and the evidence tended to show that there were no obstacles about over which the employee might have tripped. He was first seen lying on the ground frothing from the mouth. A post mortem examination revealed a hemorrhage of the brain of long standing. The medical testimony was to the effect that decedent came to his death as the result of a blood clot on the brain. The board awarded compensation, holding that death was due to the fall. On appeal

51. Gibson v. Aves, 2 Cal. I. A. C. D., (1915), 185, 10 N. C. C. A. 645. 52. Head v. Fidelity & Deposit Co., 1 Cal. I. A. C. D. (1914), 32, 8 N. C. C. A. 904.

53. Newcomb v. Albertson, 85 N. J. L. 435, 89 Atl. 928, 4 N. C. C. A. 783. 54. Delong v. Krebs, 1 Cal. I. A. C. D. 592.

55. Morris v. Indus. Comm.,

C. L. J. 41.

Ill.

- (1920), 128 N. E. 727, 7 W.