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commerce, and not within the protection of the compensation act.50

Where proof was offered that an injury to a railroad yard watchman occurred in the place he would be while performing his special duty of watching for thieves on an interstate train, this is not inconsistent with his then being engaged in his general duties of watchman, and the burden of proving that he was engaged in interstate commerce rests upon the employer seeking to escape liability under the workmen's compensation act.51

Where an employer knew that the paymaster kept a pistol, and failed to require that the pistol be kept out of sight of a fifteen year old errand boy, injuries to a watchman, through the accidental discharge of the pistol while the boy was playing with it was due to a risk of the employment.52

§ 364. Window Cleaner Falling From Ledge.-A porter in a saloon was injured when he fell from a second story window, which he was cleaning in the apartment of his employer. The regular duties of the porter did not include the cleaning of the apartment windows, and when he did clean such windows he received compensation for it separate from his regular salary. The board held that he was doubly excluded from the protection of the act, for he was a casual employee, and not performing duties in connection with the line of business of the employer at the time of the injury.54

A window cleaner fell while passing from one window to another by means of a narrow ledge on the outside, instead of going inside in safety. It was held that the accident arose out of the employment.55

50.

Smith v. Indus. Acc. Comm., 26 Cal. App. 560, 147 Pac. 600, 8 N. C. C. A. 1065.

51. Atchison T. & S. F. Ry. Co. v. Indus. Comm., 290, Ill. 590, 125 N. E. 380, (1919), 5 W. C. L. J. 364.

52. Marchiatello v. Lynch Realty Co., W. C. L. J. 498.

54.

Conn. - 108 Atl. 799, 5

Castellotti v. McDonald, 1 Cal. I. A. C. 351, 11 N. C. C. A. 375. 55. Bullworthy v. Glanfield, (1914), 7 B. W. C. C. 191.

Where a janitor employed by the city of Boston was required to perform duties ranging from window washer to fireman of the boiler, and was injured when he fell from a window ledge while engaged in washing a window, the court held that in determining whether a janitor is a laborer, mechanic, etc., within the Massachusetts Act, the specific duties of the particular janitor in question must be considered, and a finding that this janitor came within the class of laborers entitled to the protection of the act when injured in the course of his employment was, in view of the evidence, justifiable.56

56. White's Case, 226 Mass. 517, 116 N. E. 481, 14 N. C. C. A. 951.

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367. Who Are Dependents and What Constitutes Dependency.

368. Presumption Relating to Dependency.

369. Wife Living Apart From Husband.

370.

Dependency and Matters Relative Thereto as Question of Law or
Fact.

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373. Dependency of Parents, Grandparents, and Other Relatives of De

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375. Alien Dependents, and Constitutionality of Provisions Pertaining to

Aliens,

376. Illegal and Divorced Wives.

377. 378.

Desertion and Non-support.

Marriage or Remarriage of Dependent.

379. Rights of Dependents Independent of the Rights of Deceased, and Third Parties.

380. Death of Beneficiaries or of an Employee Before the Period For Which an Award Has Been Made Has Elapsed.

381. Absence of Dependents.

382.

Inheriting From the Estate of Deceased or Receiving Benefits From
Other Sources.

383. Claim for Compensation by the Personal Representative or Adminis

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386. Estopped to Dispute Claim of Dependents After Deceased's Death. Necessity of Administrating Upon Estate of Workman.

Divisi of Compensation Between Dependents-Double Compensa

tion.

387.

388.

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Sec.

395. To Whom Compensation of Children With a Surviving Parent is Paid.

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§ 365. Death Benefits.-The English act provides that the amount payable to dependents, in case of death, must be reasonable and proportionate to their injury, and the exact amount is to be determined for each case by the arbitration committee. This language required English courts, in cases of partial dependency, to inquire whether the deceased was a financial asset and whether his death was a financial injury to the dependents.1

In the United States the methods provided for determining compensation for death vary considerably, and do not in all cases depend upon the fact that the deceased was an actual financial benefit to his dependents. It is sufficient under some acts that at the time of the injury, there were parties receiving his earnings. So it has been held under the Connecticut act that if the dependent was legally entitled to the wages of a minor or actually received his wages, it was immarterial that the cost of the minor's support used up all of his contributions.2

The benefits for death in many cases in the United States aro based upon the annual earnings of the deceased, and in most cases approximate three or four years of the deceased employee's earnings. Alaska and Wyoming provide for fixed amounts without any reference to wages.3

Porto Rico provides for $1500.00 plus 75% of wages for 208 weeks. Five states provide for annual earnings for three or four years. The majority of states apply a wage percentage for speci

1. Hodgson v. Owners of West Stanley Colliery, (1910), 3 B. W C. C. 260.

2. Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025; Koether v. Union Hdw. Co., 1 Conn. Comp. D. 38; Metal Stampings Corp. v. Indus. Comm., 285 111. 528, 121 N. E. 258, 3 W. C. L. J. 258; In re Peters, 64 Ind. App.-, 116 N. E. 848, 16 N. C. C. A. 183. 3. Alaska and Wyoming. 4. Porto Rico. 5. New Hampshire, for 3 years; Illinois and

California, Kansas, and Wisconsin for 4 years.

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fied periods. Of these, one pays compensation for 260 weeks, one pays for 270 weeks, ten pay for 300 weeks, four for 312 weeks,' one pays for 335,10 one for 350 weeks, one for 360 weeks,12 five pay for 400 weeks, 13 three pay for 416 weeks1 and one pays 500 weeks.15 Four states provide for benefits until the death or remarriage of the widow or dependent or invalid widower.16 The Oklahoma law does not cover fatal accidents.

Most states provide for a uniform rate in death cases, but in 18 states the compensation varies with conjugal conditions and the number of children, the percentage, ranging from 10 to 66% percent of the average weekly wages of the deceased employee. Where there are provisions for children as beneficiaries, the payments in their behalf usually terminate on their reaching the age of 16 or 18 years, but many of these provide that the pay. ments will not cease at the ages named if the recipient is physically or mentally incapacitated from earning a livelihood.

The remarriage of a widow is made to terminate the benefits in a number of states, 18 though in a few instances a lump sum is payable on such remarriage, 19 If the benificiary is a dependent widower provision is made in two states for a similiar allowance in case of remarriage, 20 in one state if there are children,21 and

6. Vermont, 7. Delaware. 8. Indiana, Iowa, Louisiana, Maine, Michigan, Minnesota, New Jersey, New Mexico, Pennsylvania, and Rhode Island.

9. Colorado, Connecticut, Hawaii and Utah. 10 Kentucky. 11. Nebraska, 12, Texas, 13, Nevada, Arizona, Tenessee, Idaho & Montana. 14. Maryland, Ohio & South Dakota. 15. Massachusetts. 16. New York, Oregon, Washington, and West Virginia.

17. Alaska, Deleware, Hawaii, Idaho, Illinois, Louisiana, Minnesota, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Vermont, Washington, West Virginia, and Wyoming.

18. Kansas, Indiana, Kentucky, Louisiana, Nevada, New Jersy, New Mexico, New York, Oregon, Pennsylvania, Vermont, Washington, West Virginia and United States. Minnesota and Nebraska if there are children, and Maryland unless there are dependent children.

19. New York, Washington, Wyoming. In Colorado and Minnesota a lump sum is allowed if there are no children.

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