Stuart v. Kansas City (Kan. S. C.).....
Texas & P. Ry. Co. et al. v. Archer et al. (Tex. C C. A.)
Thaxter v. Finn, Sheriff (Cal. S. C.)..
Thornton v. Grand Trunk-Milwaukee Car Ferry Co. (Mich. S. C.)... 658
Travelers' Ins. Co. v. Louis Padula Co., Inc. (N. Y. S. C.).
Tsangournos et al. v. Smith et al. (N. Y. S. C.)
Twonko v. Rome Brass & Copper Co. et al. (N. Y. S. C.).
United States Fidelity & Guaranty Co. v. Taylor (Md. C. A.).
Vandalia Coal Co. v. Holtz (Ind. A. C.).
Vandalia R. Co. v. Kendall (Ind. A. C.)
Van Simaeys v. George R. Cook Co. et al. (Mich. S. C.).
Vasey et al. v. Industrial Commission of Wisconsin et al.
Vereeke v. City of Grand Rapids (Mich. S. C.).
Walker v. Industrial Accident Commission (Cal. S. C.)
Walsh v. River Spinning Co. (R. I. S. C.)...
Waterman, Lumber Co. v. Beatty (Tex. C. C. A.)
Welden v. Skinner & Eddy Corporation (Wash. S. C.).
Western Union Telegraph Co. v. Hickman (U. S. C. C. A.)
White v. Industrial Commission of Wisconsin et al. (Wis. S. C.)
Whiting-Mead Commercial Co. v. Industrial Accident Commission
Wichita Falls Motor Co. v. Meade (Tex. C. C. A.)
Wilson v. Phoenix Furniture Co. et al. (Mich. S. C.)
Woodhall v. Irwin et al. (Mich. S. C.).
Workmen's Compensation Fund, In re (N. Y. C. A.)
Zancanelli v. Central Coal & Coke Co. (Wyo. S. C.)
Zoulalian v. New England Sanatorium & Benevolent Ass'n.
From July to December, 1918, inclusive.
Our subscribers will note the change in the plan of the index.
ings and system are familiar to all attorneys and adjusters and we belive that
it will be found to be more practical. The headings are simple, concise and laid
out on a well-known plan.
(A) NATURE AND GROUNDS OF MASTER'S LIABILITY.
NATURE AND THEORY OF LIABILITY.
Servant required to ride on passenger and freight trains and to mount them
while in motion, assumes all ordinary risks of employment, but he does
assume extraordinary risks and hazards, the result of negligence
on part of railway company or those for whom it becomes responsible-
has right to assume that employer will not subject him to such extra-
ordinary risks and hazards. Dumphy v. Norfolk & W. Ry. Co. (W. Va.). 180
Switchman with 11 years' experience, familiar with the yards where he
worked, knowing the location of guard rail and that cars had been
kicked toward him at the rate of 15 miles an hour, and who stepped
between rail and guard rail, was caught and injured, assumed the risk
Gaddy v. North Carolina R. Co. (N. C.)...
Railway company is negligent within meaning of act when its engineer re-
fuses or neglects to obey order of superior officer to stop or slow down at
particular point and pick up employee. Dumphy v. Norfolk & W. Ry.
Co. (W. Va.)..
Common-law theory allowing servant to recover for personal injury, and his
administrator to recover for death where master was negligent, is super-
seded by Workmen's Compensation Act. Phil Hollenbach Co. v. Hollen-
bach (Ky.)
Award under compensation law is not made on theory that a tort has been
committed, but upon theory that statute giving commission power to
make award is read into and becomes part of contract of employment.
Doey v. Clarence P. Howland Co., Inc.. et al-Appeal of State Industrial
Commission (N. Y.)
§ 347. CONTITUTIONALITY OF STATUTES.
The act is not invalid as making employee, without his consent, a party in a
contract entered into by employer with insurance company-the act is
not beyond legislative authority as prescription established in interest of
foreign insurance companies, as the function of the notice is not to cut
off a right of action by prescription, but to take employment contract
from under operation of act-power of Legislature to provide that
employee shall have no right of action unless he gives employer notice of
injury within reasonable time cannot be doubted-not unconstitutional
because taking away employee's right of action under general law of
torts. Boyer v. Crescent Paper Box Factory, Inc. (La.).
The act is not invalid in that it fails to provide for payment of compensation
to injured servants, though act contains no insurance feature it substitutes
another scheme to accomplish same purpose-not invalid as making it
more difficult for workmen to elect to accept its provisions and to waive
them, once election is made, then it is for the employer-or as making no
provision respecting workmen under age. Johnston v. Kennecott Copper
Corp. (U. S.).....
The act is not violative of equal protection of the laws clause of the Four-
teenth Amendment as class legislation; mining being the one great
industry of the territory. Johnston v. Kennecott Copper Corp. (U. S.)..
The act is not violative of Organic Act of Alaska inhibiting Legislature from
granting to any corporation, association or individual any special or ex-
clusive privilege or franchise. Johnston v. Kennecott Copper Corp. (U. S..
Legislature has power to limit review of awards of compensation and to make
them conclusive. Thaxter v. Finn, Sheriff (Cal.).
The act as amended does not violate amendment to Const. art 10, Sec. 4,
providing compensation "to each person injured," in that no compensa-
tion is allowed for first ten days of disability-act does not deny right
of employee to be represented by counsel in view of section 25. relating
to fees of attorneys-act is not unconstitutional in that provision that
children over age of 16 shall not be considered dependents unless in-
capacitated-it is not unconstitutional in that nonresident alien family
of deceased employee shall receive only 33 per cent of amount allowed
to residents of state. Zancanelli v. Central Coal & Coke Co. (Wyo.).... 715
Congress, in the exercise of its power over interstate commerce, and subject
to the limitations prescribed in the Constitution, may regulate those
relations of common carriers by railroad and their employees which have
a substantial connection with interstate commerce, and while both car-
rier and employee are engaged therein. Second Employers' Liability
Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44.
Eskelsen v. Union Pacific R. Co. (Neb.)..
The act in taking away existing rights of action of employee and extending
employer's liabilities and limiting amount of recovery is legitimate ex-
ercise of police power. Matthiessen & Hegeler Zinc Co. v. Industrial
Board et al. (II.)......
$348. CONSTRUCTION AND OPERATION OF STATUTES IN GENERAL.
The act is highly remedial and must be liberally construed. Industrial Com-
mission of Colorado et al. v. Johnson (Col.).
It must be presumed that legislature had in view definition of "willful" as
found in Pen. Code, Sec. 7., being a purpose to do and act without neces-
sarily intending to violate a law or injure another. Bay Shore Laundry
Co. v Industrial Accident Commission of California et al. (Cal.)....
Act should be liberally construed with view to effectuating intention of its
framers. Phil Hollenbach Co. v. Hollenbach (Ky.) ........
Gen. St. 1915, Sections 8492-8495, do not enlarge a defendant railroad's lia-
bility over that created by Employers' Liability Act April 22, 1908,
c. 194, 35 Stat. 65 (U. S. Comp. St. 1916, Sections 8657-8665. Rask V.
Atchison, T. & S. F. Ry. (Kan)....
Federal Employers' Liability Act furnishes exclusive remedy in all cases fall-
ing within its provisions. Baltimore & O. R. Co. v. Branson (Md.).
In action under federal Employers' Liability Act, measure of damages is to be
determined according to provisions of act itself and general common law
as administered by federal courts, unaffected by state legislation and
decisions of state courts. Laughlin v. Kansas City Southern Ry. Co. (Mo.). 802
Act prescribing liability of employers for compensation, plainly expressed the
intention to limit rights and remedies and to exclude other rights;
"prescribe" meaning to lay down authoritatively as a guide or rule of
action. Philps v. Guy Drilling Co. (La.) ...
The Alaska Act supersedes the common law and no action can be brought
for injuries in any court, federal or otherwise, outside the territory of
Alaska. Martin v. Kennecott Copper Corporation (U. S.)..
§ 349. RETROACTIVE OPERATION OF STATUTES.
Scalping employee which occurred while performing services arising out of
employment prior to amendment of statute, entitles him to damages and
not compensation under the act. Boyer v. Crescent Paper Box Factory,
Inc. (La.)
Proceedings for compensation to coal passer on Great Lakes interstate ferry
brought in state court before amendment of judiciary act to save com-
plainants all rights and remedies under Workmen's Compensation Law
of any state was subject to admiralty laws and jurisdiction was in
federal District Court since statute could not be given retroactive effect.
Thornton v. Grand Trunk-Milwaukee Car Ferry Co. (Mich.).
ACCEPTANCE OR REJECTION OF STATUTE, AND ELECTION OF
REMEDIES.
RIGHT TO ELECT, AND EFFECT OF ELECTION IN GENERAL.
Section 53 requiring that employers shall insure payment of compensation in
one of three ways is compulsory on all employers. Industrial Commission
of Utah v. Daly Mining Co. (Utah)..
Employer, being free to come under Act or stay out, may accept it as to
one or more of several lines of business in which he is engaged. Ander-
son v. McVannel et al. (Mich)...
Where there was no written agreement or notice between employer and em-
ployee that act should not apply to employment, accident occurring 30
days after contract is not excluded. Philps v. Guy Drilling Co. (La.).. 783
WILLFUL OR INTENTIONAL ACTS OR OMISSIONS OF EM-
PLOYER.
In action under federal Employers' Liability Act. fellow-servant doctrine
has no application. Rockwell v. Hustis-Holden v. Same (N. H.)...... 667
Whether company was negligent in leaving car standing on track was ques-
tion for jury. Cincinnati, N. O. & T. P. R. Co. v. McGuffey (U. S.).... 863
In action under Federal Employer's Liability Act, evidence as to defendants'
negligence held to make question for the jury-railroad bound to inspect
cars of another railroad used on its own road. Rowe v. Colorado & S.
R. Co. et al. (Tex.).....
353.
INJURIES NOT PROVIDED FOR IN COMPENSATION ACT.
Engineer in charge of caterpillar engine would be "operating farm machine."
but deceased. who was assisting by means of lantern in harrowing and
had nothing to do with engine at time of accident, would not. Mary-
land Casualty Co. v. Industrial Accident Commission et al. (Cal.)..
RIGHT OF ACTION AGAINST THIRD PERSON.
As the Texas Act was inapplicable to stevedore's claim against vessel and as
he asserted no claim against insurer or its agents, payment from insurer
did not bar claim against vessel, but' amounted at most to a pro tanto
satisfaction. The Emilia S. De Perez (U. S.)...
If employee is injured by negligence of third person, he may elect to sue that
person, or to claim compensation and if he receives later the amount
which is paid him becomes measure of recovery of his employer, who
pays award, against third person who caused injury-widow who accepted
compensation from employer, but did not make agreement for compensa-
tion approved by Board and did not submit a demand against employer,
did not "proceed" against employer within the Act and could maintain
suit against person, not the employer, whose negligence caused death.
Brabon v. Gladwin Light & Power Co. (Mich.)..
Neither section 5, part 2, of the Workmen's Compensation Act, providing that
the insurance associations may recover indemnity from other persons
who would have been liable to the insured employee, nor any other part
of the act, in express terms or by implication, confers authority upon the
insurer to reimburse himself for compensation paid to an injured em-
ployee as against a third person through whose negligence the injury
occurred, or to be subrogated to the rights of the beneficiary as against
such third person. Southern Surety Co. et al. v. Houston Lighting &
Power Co. (Tex.)......
Under Workmen's Compensation Act, art. 3, Sec. 21, providing that employee
injured through negligence of person other than employer, shall not be
entitled to receive damages from such person and also compensation, pay-
ment of compensation under agreement filed in and approved by court
that employee shall sue negligent third party and return compensation
in event of recovery of damages does not preclude employee from suing
negligent third party. Mingo v. Rhode Island Co. (R. I.)..
Settlement by Industrial Board with employee of subscriber, does not preclude
action by employee against third party to recover damages occasioned
by negligence. City of Austin v. Johnson (Tex.)..
Servant whose injuries from third person's negligence arose out of and in
course of employment could not concurrently proceed at common law
against negligent person for damages and, under statute, against master
for compensation. Labuff v. Worcester Consol. St. Ry. Co. (Mass.).
Deceased's mother, by accepting compensation, did not release third person
from liability under Survival Act to deceased's administrator for negli-
gent killing. Vereeke v. City of Grand Rapids (Mich.).
RIGHT OF ACTION BY EMPLOYEE'S PARENTS.
COMMON-LAW DEFENSES ABOLISHED.
Where it appears that company employs more than five servants, it is subject
to the act whether a subscriber or not and consequently cannot plead
assumption of risk. Wichita Falls Motor Co. v. Meade (Tex.)
Where employer was not insured under act he cannot avail himself of con-
tributory negligence or assumption of risk on part of servant. Gayton
V. Borsofsky (Mass.)
Under Federal Act servant assumes all ordinary risks which are known to
him, but he does not assume them until he becomes aware of such negli-
gence and of the risk arising therefrom-whether risk is ordinary risk of
employment or extraordinary risk known to servant is question of fact
to be submitted to jury. Chicago, R. I. & P. Ry. Co. et al. v. Ward
(Okla.)
Under the act where employer, sued for suffering and death of servant, was
not insured, it was no defense that servant was negligent or assumed
risk, or that negligence was caused by fellow employee. Schlehuber v.
American Express Co. (Mass.)
In action governed by federal Employers' Liability Act for injury to railroad
employee engaged in interstate commerce, railroad can invoke defense
of assumed risk. Gulf, C. & S. S. F Ry. Co. v. Drennan (Tex.)...... 701
In action for injuries when section hand was drawn under wheels of motor
car, derailing car and injuring other servants, evidence that company
had other cars with smaller wheels which would not draw men under
them was competent not to show company's knowledge, but to show that
car in question was not reasonably safe. Rockwell v. Hustis-Holden
V. Same (N. H.)..
Employer who declined to accept provisions of act is precluded from asserting
defenses of assumption of risk. contributory negligence and negligence.
National Enameling & Stamping Co. (U. S.)..
PERSONS ENTITLED TO ELECT.
FORM AND REQUISITES OF ELECTION (INCLUDING IMPLIED
ELECTION).
Notice to employee prescribed by act creates relation of subscriber employer
and employee, such act being_mandatory and requiring actual giving of
written or printed notice. Farmers' Petroleum Co. et al. v. Shelton
(Tex.)
If employee has right either to sue his employer at law or take compensa-
tion under Act and he sues and later files claim for compensation, action
at law abates. Brabon v. Gladwin Light & Power Co. (Mich.).
Where employer was in plumbing business, was engaged in work in building,
plaintiff was an employee, and neither of them had rejected the act,
both were subject to its provisions. Johnson v. Choate (Ill.).
Servant injured by street railroad's negligence, by beginning action against
it for damages before he gave notice to his own employer's insurer of
any claim under act, made election between such inconsistent remedies,
binding him as well as street railroad. Labuff v. Worcester Consol. St.
Ry. Co. (Mass.)
The act applies where an injured employee gives notice only after accident,
but within 30 days of date of employment. Boyer v. Crescent Paper
Box Factory, Inc. (La.)...
§ 360. RELATION OF PARTIES, AND PERSONS AND EMPLOYMENTS
WITHIN STATUTE.
Servant working in room where there was movable elevator operated by hand,
adjacent to stamping room containing power-driven press, elevators and
stamping machine, was employed in proximity of hoisting apparatus and
power-driven machinery under act-though not in proximity when he was
injured, he was covered. Morin v. Nashua Mfg. Co. (N. H.).......... 101
Where paper mill was going concern and installation therein of new engine
was necessary to run it at full capacity, employee engaged in installing
engine was furthering business of mill within the act. McNally v.
Diamond Mills Paper Co. et al. (N. Y.)..
Employee of corporation which was valid public charity was not within
provisions of the Act. Zoulalian v. New England Sanatorium & Bene-
volent Ass'n. (Mass.)..
Where servant of ice company was injured while at work in yard of coal
company, to which ice company let a pair of hores, wagon, and servant
as driver, latter taking his orders from coal company such servant was
in employment of coal company and its remedy was against its insurer,
not against ice company's insurer. Scribner's Case (Mass.)...
Where defendant's business was that of maintaining a large building, let
out and used for income, part of it occupied as lodgeroom, dance hall and
offices in connection, defendant was subject to act, such business being
declared to be extrahazardous. Johnson v. Choate (Ill.)......
Retail coal dealer who, as adjunct of business, hauled his own coal and
sometimes hauled coal for others was not engaged in carriage by land
as an extra hazardous occupation within act. Fruit v. Industrial Board
(Ill.)....
Workman instructed with running of electric motor and injured while so
doing, was employee of railroad, though he had not submitted to physical
examination or been formally accepted as employee. Illinois Cent. R.
Co. v. Industrial Board et al.
Employer having rooms in his residence kalsomined was not engaged in the
"construction, repair and demolition of building for profit" within the
act, though he was willing to sell at a profit. Hungerford v. Bonn et al.
(N. Y.)
Fact that kalsominer thought it necessary to smooth spot in ceiling and
fill little hole with plaster did not bring his employer within hazardous
business of "plastering" for profit. Hungerford v. Bonn et al. (N. Y.).. 682
Where president of corporation, its employee under Workmen's Compensation
Act, when injured, was engaged in personal superintendence of manual
and mechanical operations of corporation, the premium paid the com-
pany's insurer being based on payroll in which president's remuneration
was not included, he could not recover, not being within the terms of
the policy-he must be presumed to have assented to contract of work-
men's compensation insurance made by company's treasurer, who also
owned but one share less than half the stock where business was
ducted as partnership owned by two, brothers. Cashman's Case (Mass.). 637.
Carpenter working on construction of building to be part of shipbuilding
plant, who was working 35 feet from galvanizing tank and was required
to pass near tank in following usual way to toilet, was engaged in extra-
hazardous work within the act. Welden v. Skinner & Eddy Corporation
(Wash.)
Compensation Act was enacted for purpose of providing state insurance fund
for benefit of injured and dependents of killed employees and requiring
contribution thereto by employers. If no relation of employer and em-
ployee exists provisions have no application. Acklin Stamping Co. V.
Kutz (Ohio)
Employer dealing in domestic fruit and vegetables, not involving storage,
except as incidental thereto at place having a sign reading, "Wholesale
Vegetable and Fruit Market," was not within the act. defining as a
hazardous employment "storage of all kinds and storage for hire."
Dugan v. Harry J. McArdle, Inc., et al. (N. Y.)..
Where servant in general employment of ice company was injured while at
work in yard of coal company to which ice company let pair of horses,
wagon and driver, latter taking his orders from coal company, such
servant was in employment of coal company when injured. Scribner's
Саве (Mass.)
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