$ 354.

RIGHT OF ACTION AGAINST THIRD PERSON.
Section 5 of Compensation Act gives injured employee statutory action or
proceeding against employer for compensation and also for damages
against wrongdoing third party causing his injuries, and where such
person is not estopped by her acceptance of compensation already pro-
vided for her, nor by her participation in arbitration proceedings to de-
termine her compensation, nor by other actions constituting ratification
or acquiescence, she may prosecute her action against both employer
and wrongdoing third party, and she is not required to choose between
compensation allowed and damages which she may recover, until action
is tried and determined, but she is hot entitled to recover both damages
and compensation-the word "recover" means to "get," "procure,"
"obtain," and the like and provision concerns itself with actual payment
and is not limited to recovery of judgments upon which nothing may
be realizeȧ. Swader v. Kansas Flourmills Co. et al. (Kan.)
Where employee who as well as employer has elected to come under act 18
injured by third person, who is not under act, employee need not elect
between compensation under act and damages at common law, but may
prosecute both actions at same time. Gones v. Fisher (Ill.).

§ 356.

....

COMMON-LAW DEFENSES ABOLISHED.
Immaterial whether risk was assumed by acts of employee or by his con-
tract of employment. Bay State St. Ry. Co. v. Rust (U. S.)...
Employer who has elected not to accept Compensation Act has waived its
right to interpose common-law defense of assumed risk. New Staunton
Coal Co. v. Fromm (Ill.)..

121

696

432

Plaintiff may have been under Compensation Act by reason of his employer's
election, is insufficient to place him under act as amended, his employ-
ment having been intermittent and there having been, no election by
him under Statute requiring election by both employee and employer.
Waldum v. Lake Superior Terminal & Transfer Ry. Co. et al. (Wis.).... 671
Heir who is not sui juris cannot waive right of action by application for
award, or vice versa under Industrial Commission Act, being incapable in
law of making election-mother by applying for compensation for father's
death does not waive minor children's right to brng acton for damages.
Garfield Smeltng Co. v. Industrial Comission of Utah (Utah)..

$358.

531

136

FORM AND REQUISITES OF ELECTION (INCLUDING IMPLIED
ELECTION).
Subcontractor's employee by failing to give notice to chief employer, on
whose vessel he was to work, that he claimed his right of action at com-
mon law for any injuries decided to become bound by act, and to waive
common-law right. Duart v. Simmons (Mass.)..
Stevedore injured while loading vessel who was entitled to remedy afforded
by State Act, held not to have elected that remedy by signing at request
of attorney the notice to employer contemplated by Compensation Act
and to be entitled to sue in admiralty. Siebert v. Patapsco Ship Ceiling
& Stevedore Co. et al. (U. S.)...
Where employer which became subscriber failed to give written notice to em-
ployees provided for by Statute, it was not binding on injured employee
who had no notice that employer had adopted the act. Batson-Milholme
Co. v. Faulk (Tex.).....

IN GENERAL.

219

805

Compensation Act permits election only by filling and posting notices not to
be bound 60 days before expiration of calendar year a failure to post
such notices within that time is election to comply with provisions of act
for ensuing calendar year. Reynolds v. Chicago, City Ry. Co. (Ill.).... 608
361.
Digging trenches with shovel in plumber's business of making private con-
nections with city sewers is "excavating" under statute naming such
work as extrahazardous-it being more dangerous than ordinary occupa-
tion though there be more hazardous excavations. Scully v. Industrial
Commission of Illinois (Ill.)....

"Employee" as used in act as "every person in service of another under con-
tract of hire" is to be broadly construed. Marshall Field & Co. v. Indus-
trial Commission of Illinois et al. (Ill.)..
Superintendent of wholesale dairy route, who left employer's place of
business to instruct new driver, traveling by street railway, and who,
upon alighting from car was killed by automobile, was not at such time
engaged in "hazardous" occupation, within act or in service of em-
ployer whose principal business was hazardous. Balk v. Queen Dairy
Co. et al. (N. Y.)..

Under act coal yards were not classified among "hazardous employments"
laborer, injured by coal falling on him while unloading coal in rail-
road car within yard of employer, was not "operating a wagon" within
act as to "hazardous employment." In re Hassen-Appeal of United
States Casualty Co. (N. Y.)..

80

105

177

181

Laying carpets is not "upholstering" within any of the definitions given the word by standard lexicographers and especially not within act. Stradar v. Stern Bros. et al. (N. Y.)....... One who was engaged in no other business than managing, maintaining and keeping in repair some 12 or 15 buildings, all, except 1 or 2 owned by his children, belonging to him, keeping a foreman for the purpose, was engaged in the "business of maintaining buildings" within the act. Storrs v. Industrial Commission et al. (Ill.). Child Labor Law, the Women's Ten Hour Law, the Health. Safety, and Comfort Act and a city ordinance requiring persons conducting meat markets to take out licenses, and imposing penalties for false weights, do not bring employer conducting store and butcher shop within Compensation Act by reason of section 3, cl. 8, applying the act to persons engaged in enterprises in which statutory or municipal ordinance regulations are imposed for protection of employees. Deitrich v. Industrial Board et al (Ill.)...

Administrator or executor, if employer of labor, may become subscriber instead of remaining under common law subject to disadvantages imposed by Statute. Keohane's Case In re McCarthy. In re Massachusetts Bonding & Ins. Co. (Mass.) Where one carrier employed watchman at crossing and another company operating a parallel track paid one-half of salary, relation of employer and employee within meaning of act existed between each railroad and watchman. San Francisco-Oakland Terminal Rys. v. Industrial Accident. Commissión (Cal.).......

191

238

248

743

682

759

343

Receivers of railroad company are presumed to be operating under Compensation Act until they elect not to come within its provisions, though before their appointment corporation had made such election-receivers are "employers." Unrine v. Salina Northern R. Co. et al. (Kans.).... 633 Where partnership acted as agent in making contract of hiring with claimant for compensation and failed to disclose the principal and claimant was led to contract under belief it was with firm as principals, claimant, on learning facts, could not treat his contract as binding on either the firm, or their principals, at his election and having elected to hold firm they must answer to him. Scott v. O. A. Hankinson & Co. et al. (Mich.)............. Night engineer, of plano factory was an "employee in hazardous employment." Nulle et al. v. Hardman, Peck & Co. (N. Y.)..... Act does not extend to employee on vessel in navigable waters and Industrial Commission cannot collect from employer premiums on account of such employees employees of corporation engaged in dredging upon navigable waters, employed solely on land, fall within act-where employees engaged partly on land and partly on dredges subject to admiralty jurisdiction, Industrial Commission was entitled to collect premiums to be paid in proportion to time employees spent on land and on navigable water. Puget Sound Bridge & Dredging Co. v. Industrial Ins. Commission et al. (Wash.). ...... 544 Switchman injured while engaged in intrastate commerce; his only remedy is under state act. Ward v. Erie R. Co. (N. Y.) When Compensation Act which applied to employees of railroad company was amended so as to exclude employees of all railroad companies operating steam railroads as common carriers, intent was to exclude companies organized as railroad companies and doing business as common carriers. Waldum v. Lake Superior Terminal & Transfer Ry. Co. et al. (Wis.). In determining whether relationship of employer and employee existed general law as well as Compensation Statute itself must be considereddefinitions of same under Compensation Law are broad enough to include both general and special employer. Employers' Liability Assur. Corporation, Limited, of London, England, v. Industrial Accident Commission (Cal.) Where partnership furnished men and foreman to cement company who were to be paid by partnership with funds furnished by cement company, partnership retaining power to hire and discharge, men were under joint control of partnership and company, who were jointly associated in carrying out the work. Employers' Liability Assur. Corporation, Limited, of London, England, v. Industrial Accident Commission (Cal.) Illegal contract of employment does not destroy operation of act.

...

363

671

407

40%

Frint Mo

399

torcar Co. v. Industrial Commission of Wisconsin et al. (Wis.). Cause of action by taxicab driver for injuries received as result of defective wrench furnished by employer does not fall within Employers' Liability Act. Ridley v. Portland Taxicab Co. (Ore.)....... Machinist regularly employed by master in repairing motorcars injured while present to repair its cars which were racing, was within regular employment. Frint Motorcar Co. v. Industrial Commission of Wisconsin et al. (Wis.)

362. CASUAL EMPLOYMENT. "Casual" as applied to employment in act has reference to contract for service and not to particular item of work being done at time of injury. Scully v. Industrial Commission of Illinois (Ill.) Character of contract of employment as to whether it was casual or not was fixed by contract of hiring structual Ironworker sent from union headquarters, with three other members to complete job requiring only three or four days' work and who was employed by railroad for particular job only, was engaged in "casual employment." Chicago Great Western R. Co. v. Industrial Commission of Illinois et al. (IN.)..

520

399

30

14

Construction of buildings referred to, held within "usual course of em-
ployer's business" within meaning of act. State ex rel. Lundgren v.
District Court of Washington County (Minn.)...

Under Act providing that term "employee" shall not include any person
whose employment is but casual, a carpenter temporarily employed as
helper on transfer wagon, held not an employee within act. Thede Bros.
et al. v. Industrial Commission et al. (Ill.)...

$ 363. — FARM LABORERS.

Under Compensation Act if worker upon farm may be reasonably classified as
one engaged in agriculture, his employer is not liable-workman whose
sole duty is to repair wagons in shop operated on farm is "engaged in
farm labor." Miller & Lux Incorporated v. Industrial Accident Com-
mission of California (Cal.).

Injury to farm hand, assisting in unloading ice from sleigh, to farm ice-
house, was not within act where ice was used for farm purposes and not
for pecuniary gain, injured employee being farm laborer. Mullen v.
Little (N. Y.)........

Borough policeman is an "employee" of borough within the act. McCarl et
al. v. Borough of Houston (Pa..)....
In proceeding by street sweeper for compensation for injuries received when
run down by automobile, city traffic ordinances are not "ordinances" with-
in Cmpensation Act and liability cannot be predicated on ground that
employment was one in which municipal ordinances were imposed for
protection of employees and public cities and incorporated villages are
"employers"-city street paved with asphalt is a "structure" within the
act and sweeping and cleaning of such street is "repairing or maintain-
ing." City of Rock Island v. Industrial Commission of Illinois et al.
(III.)

159

242

667

600

789

592

136

$365.
EMPLOYEES ENGAGED IN INTERSTATE COMMERCE.
Terms of Compensation Act are broad enough to include employee working
in connection with discharge of cargo of vessel engaged in interstate or
foreign commerce, only master and seamen of vessels so engaged being
excluded. Duart v. Simmons (Mass.).....
Under act as amended exempting railroads which do an interstate business,
employee of such railroad, though bulk of its business is intrastate, is
not entitled to compensation, but can recover only in accordance with
latter part of the amendment which enacts within state the provisions
of the federal act. Spokane & I. E. Ry. Co. et al. v. Wilson et al.,
Industrial Insurance Commission (Wash.)
201
With respect to employer engaged in interstate commerce, section 52 of act
applies provisions of act unconditionally to those of his employees whose
work is wholly intrastate and clearly separable and distinguishable from
work of interstate commerce, though same section, with respect to em-
ployees who are engaged partly in intrastate and interstate commerce,
provides that act shall apply only upon condition that employer and such
employees voluntarily accept provisions of act by formal writing ap-
proved by commissioner. Suttle v. Hope Natural Gas Co. (W. Va.)....
Evidence showed that bolt upon which plaintiff was working when injured,
was put on particular engine, engaged in interstate commerce. Atlantic
Coast Line R. Co. v. Woods (U. S.)..
Servant engaged in wheeling bricks from freight car on siding to freight
terminal in course of construction was not engaged in .interstate com-
- merce and could not recover under federal Employers' Liability Act,
when injured through the negligence of fellow servant. Matti v, Chicago,
M. & St. P. Ry. Co. (Mont.).
Member of repair gang killed while passing from one car to other, was en-
gaged in "interstate commerce." Southern Pac. Co. v. Industrial Accident
Commission (Cal.)

....

State Employers' Liability Act as amended by section 30 or original Act ex-
cludes its application to any employer acting as a common carrier in in-
terstate commerce by railroad, does not apply where deceased servant's
employer was so engaged, regardless of whether servant's work was a
part of railroad's interstate commerce. Bergeron v. Texas & P. Ry Co.
(La.)
Where interstate and intrastate carriers had parallel tracks and each paid
half of salary of watchman, and watchman was killed by train of in-
terstate carrier at time when train also came by for intrastate carrier,
Jurisdiction of state Industrial Commission was not lost as to intrastate
carrier by reason of federal act. San Francisco-Oakland Terminal Rys.
v. Industrial Accident Commission (Cal.).

Action by administrator of boy under 16 employed in violation of Labor Law
and killed while engaged in employment enumerated in Compensation Act,
Art. 1., Sec. 2., Group 22, brought for benefit of father and next of kin
cannot be maintained, Sec. 11 of later act providing exclusive compensa-
tion. Robilotto v. Barthold! Realty Co. (N. Y.)........
Department store company, by its vold contract employing girl under 14 years
of age, could not imit its liability for injury to her to compensation fixed

205

163

12

308

682

in

by Compensation Act, to which she was unable to give assent-misstatement by girl of age in order to secure employment is no defense to employer, sued for injury to her, and claiming only remedy is under Workmen's Compensation Act, despite illegality of employment; prohibition against employment of child under 14 being absolute. Sechlich v. Harris-Emery Co. (Iowa)..... Held that the charge adopted was proper test of vice-principalship and a new trial should not have been granted because of alleged error charge. Gutmann v. Anderson (Minn.)... Unless employer has age and employment certificate provided for by Statute, minor between ages of 14 and 16 is not working at an age legally permitted under laws of state-where employer who has received from proper school committee and has in his possession a certificate in form substantially as required by law, he is not required to investigate accuracy, but is entitled to rely upon it as rendering employment of child named as being legally permitted and said child is sul juris as an employee. Taglinette v. Sydney Worsted Co. (R. I.)...

367.

--

INDEPENDENT CONTRACTORS AND THEIR EMPLOYEES. Where contract provided that buyer of timber should reimburse seller for wages paid scalers, not to exceed $50 per month each, scaler employed by and who worked under direction of seller at salary of $70 per month, was not employee of buyer within act. Kirby Lumber Co. v. McGilberry et al. (Tex.) Principal test as to whether one is employee or independent contractor lies In degree of control retained and exercised by person for whom work is being done where employer of drainage district supervised ditch-cleaning operation as to results only, while person injured operated his own machinery, etc., he was an independent contractor. Meredosia Levee & Drainage Dist. v. Industrial Commission of Illinois et al. (Ill.).................. Contract providing for digging tunnel for express consideration, which gave party desiring tunnel dug right to withhold 20 per centum of compensation until work was completed, but contained no reservation of control of work more than necessary to insure its producing results provided for, did not create relation of master and servant-mere fact that independent contractor followed directions of owner of mine regarding work of digging tunnel did not change relation of master and servant. Industrial Commission of Colorado et al. v. Maryland Casualty Co. (Colo.).. Painter agreeing to paint three smokestacks for corporation was independent contractor where he had absolute control of himself and helper as to time when he was to begin work and as to where he should commence, unhampered by directions from corporation and not subject to its discharge in relation of employer and employee, employer had control and direction, not only of work and its performance and results, but of its details and methods and may discharge employee disobeying such control that Independent contractor is directed by corporation during performance of work does not affect his status as such-that he was furnished paint and helper by corporation does not affect his status. Litts et al. v. Risley Lumber Co. et al. (N. Y.)...........

....

126

765

662

76

34

95

170

Claimant for compensation for injuries from town, who engaged in business - of stable keeping, teaming and jobbing, let to town for work on roads, cart, horses and himself for undivided price of $6. per day, held “independent contractor." Winslow's Case.. In re Town of Mansfield (Mass.).741 Driver of team hired out by owner, his general employer, to work for another, remains in employ of general employer so far as concerns management and care of horses-owner of teams and horses who let them with drivers at hourly rate, paying drivers and driving team himself, who was injured in management of horses of his team, not entitled to compensation from company or insurer. Centrello's Case. In re J. K. Ryan Co. In re Travelers Ins. Co. (Mass.)

One employed to remove trees preparatory to grading street to be paid in lump sum, he furnishing his own tools, controlling his own time, etc., he was a "contractor." Storm v. Thompson (Ia.). Where person lets out work to another, and contractee reserves control over work of workmen, method of work, etc., relation of contractor and contractee exists and not that of master and servant. Smith v. State Workmen's Ins. Fund (Pa.)....

Compensation Act must be presumed to have used the word "contractor" in sense it is commonly employed, and in which it has been defined by the courts. Storm v. Thompson (Ia.)......

4-369.

....

INJURIES OCCURRING IN FOREIGN STATE. Board obtained jurisdiction by application of wife alleging employment of husband and injury causing death suffered in course of employment, although injury occurred while employee was outside of state. Friedman Mfg. Co. v. Industrial Commission of Illinois et al. (Ill.)...... Compensation Act of Illinois does not authorize compensation for death of person by drowning in Ohio River while at work on occasion attached to river bed outside of state boundary. Union Bridge & Construction Co. v. Industrial Commission et al. (Ill.).. Where native of New York, employed by New York corporation met death while working for corporation in New Jersey, held, New York act was applicable, it not appearing that it was contemplated that sole activities

740

470

374

470

21

690

....

should be in New Jersey.
(N. Y.)
That Compensation Act abolishes certain common-law defenses "within the
state" and that the act is made applicable to minors legally employed
under laws of this state does not show intention to limit act to injuries
within the state-act is part of every contract and in case of injury to
employee rights and liabilities must be determined in accordance with
its provisions whether injury occurs within or without the state. Ander-
son v. Miller Scrap Iron Co. et al. (Wis.)....

Holmes v. Communipaw Steel Co. et al.

647

389

26

18

To authorize compensation it is not necessary that injury be one which
ought to have been foreseen or expected, but it must be one which,
after the event, may be seen to have had its origin in nature of employ-
ment. Pekin Cooperage Co. v. Industrial Commission et al. (Ill.).....
Injury occurs in course of employment when within period of employment,
at place where employee may reasonably be and while reasonably ful-
Alling duties of employment. N. K. Fairbank Co. v. Industrial Com-
mission of Illinois et al. (Ill.)
Employee so drunk and helpless that he can no longer follow his employment
is not engaged therein and injury received while in such condition does
not arise out of employment. Lefens et al. v. Industrial Commission
et al. (Ill.)
Plaintff thrown from runway between two buildings was injured in course
of employment. Gadberry v. Hutchinson Egg Case Filler Co. (Kan.).... 478
In order that injury may arise out of employment it must be received while
workman is doing duty he is employed to perform and also as natural
incident of work flowing therefrom as natural consequence and directly
connected therewith. Di Salvio v. Menihan Co. et al. (N. Y.)....
Employee, who was in shop in which he worked all ready for day's work at
time of accident was injured within course of employment. Rish v. Iowa
Portland Cement Co. (Ia.).

Injury arising out of employment includes injuries to employees whose serv-
ces are being performed about premises of employer and at places where
employer's business required their presence. Great Lakes Dredge & Dock
Co. v. Tetzke et al. (Ind.).....

$372.

CAUSE OF INJURY IN GENERAL.
Since under statute, compensation is given only for such injuries as are in-
cidental to and grow out of employment, it does not extend to injuries
from exposure to hazard which is not peculiar to industry or substantially
increased by nature of services. Ellingson Lumber Co. et al. v. Industrial
Commission of Wisconsin et al. (Wis.).

246

491

463

448

215

Where lumberjack by mistake in orders worked at wrong place and on find-
ing mistake went to proper place and worked so much harder than
usual in preparing for next day's drive that his feet perspired and were
consequently frozen, he received injury proximately caused by accident
arising out of and in course of employment within statute. Ellingson
Lumber Co. et al. v. Industrial Commission of Wisconsin et al. (Wis.).. 215
"Personal injury" includes not merely break in some part of body or some
wound, but the consequence or disability resulting thereform, such as de-
pressed mental or nervous condition. Kingan & Co., Limited v. Ossam
(Ind.)
Injury directly and naturally resulting in risk reasonably incident to employ-
ment arises out of employment. Thomas y. Proctor & Gamble Mfg. Co.
(Kans.)

--

373.
PARTICULAR CAUSES OF INJURY.
Where claimant, culling barrel staves for barrel raiser, was assulted by em-
ployee, who was culling staves for another barrel raiser, because of dis-
pute in regard to one taking staves from rack of other, he suffered ac-
cidental injury in course of employment. Pekin Cooperage Co. v. In-
dustrial Commission et al. (Ill.)..

Where beam tender of tire fabric company, whose business it was to see
that yarn was wound around revolving cylinder was killed when he fell
on machine, accident arose out of employment. Dow's Case. In re

American Mut. Liability Ins. Co. (Mass.).

276

713

26

144

215

Injury by freezing is not peculiar to work of lumberjack, so that, in absence
of peculiar circumstances, compensation cannot be allowed therefor.
Ellingson Lumber Co. et al. v. Industrial Commission of Wisconsin et
al. (Wis.)
Where sunstroke paralyzed definite portion of employee's brain so that it no
longer discharged its proper functions, and death shortly resulted in ac-
cordance with ordinary process of such disturbance of brain, employee
sustained "personal injury" within the act-death from sunstroke held
compensable injury under act-it clearly appearing that employee was
stricken while doing what he was employed to do, injury arose "out of
and in the course of employment." Ahern v. Spier et al. (Conn.)...... 221
Where head waiter of hotel was killed, while in hotel eating lunch under
contract of employment, by waiter whom he had discharged in interests
of hotel and acting under its authority, death was in course of employ-
ment. Cranney's Case. In re Hotel Essex. In re Employers' Liability
Assur. Corporation, Limited (Mass.).

641