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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.)...... 903
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.)..

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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.)
518

552

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.)..

$357.
$358.

PERSONS ENTITLED TO ELECT.

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739

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.)
138

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.)..

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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.)

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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.)..........

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71

§ 360. RELATION OF PARTIES, AND PERSONS AND EMPLOYMENTS
WITHIN STATUTE.

IN GENERAL.

§ 361.
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.).........
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 (I.)..
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 extrahazardous occupation within act. Fruit v. Industrial Board
al. (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. (Ill.)..
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.)

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Fact that kalsominer thought it necessary to smooth spot in ceiling and
All 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 con-
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
Case (Mass.)

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Exemption of "casual employment" depends, on nature of contract of em-
ployment and one hired for limited and temporary purpose though within
scope of master's business is within exemption. Western Union Tele-
graph Co. v. Hickman (U. S.)...................

Mere fact that employment is for one job only does not necessarily make it
casual. American Steel Foundries v. Industrial Board et al. (Ill.).
Where plaintiff's contract was for fixed rate of wages employment was not
casual. Johnson v. Choate (III.).

A casual employee, killed by accidental injury September 16, 1916, at plant
where hazardous employment was carried on was an "employee"
Cummings v. Underwood Silk Fabric Co., Inc., et al. In re Travelers'
Ins. Co. (N. Y.)..
Common-law principle that employee lent to a special employer and who
assents to change, becomes servant of employer to whom he is lent, ap-
plies to cases under Workmen's Compensation Act. Scribner's Case
(Mass.)

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Employee of one who owns steam thresher and threshes grain for farmers
under contract is a farm laborer and excepted from operation of Statute.
State ex rel. Bykle v. District Court of Watonwan County et al. (Minn.) 522
While farm laborer engaged in getting out logs was in hazardous occupation
within the Compensation Act, Sec. 3, subd. 4, he was by such section
expressly excluded from act as farm laborer-mere fact that he was en-
gaged in logging in winter did not take his work out of term "farm
laborer" as used in act. Brockett v. Mietz (N. Y.)..
Where one seeking compensation was hired as janitor, whose duty extended
to care of grounds and trimming of trees, and was injured while trimming
tree left unsightly by former attempt to trim it so as to admit light to
building, determination that he was engaged in horticulture and not en-
titled to compensation was reasonable. George v. Industrial Accident
Commission et al. (Cal.)....

§ 364.

§ 365.

PUBLIC EMPLOYEES.

EMPLOYEES ENGAGED IN INTERSTATE COMMERCE.
Compensation cannot be had for death of servant employed in interstate
commerce although employer was not guilty of negligence. McKenna V.
New York Cent. R. Co. (Mich.)..

Coal passer on interstate ferry on Great Lakes fell within jurisdiction of
federal District Court, as to admiralty jurisdiction. Thornton v. Grand
Trunk-Milwaukee Car Ferry Co. (Mich.).

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In view of statute the Workmen's Compensation Act does not apply to infants
employed around dangerous machinery in violation of Acts 32d Leg. c. 46
(Vernon's Ann. Pen. Code 1916. art. 1050). Waterman Lumber Co. v.
Beatty (Tex)
Minor employed in violation of statute enacted for protection of children is
not an "employee"-in action by minor for personal injuries claimed to
have arisen from failure of employer to comply with lawful requirement
for protection of lives and safety of employees, provisions of Sec. 29 of
that act (Section 1465-76 General Code) do not apply. Acklin Stamping
Co. v. Kutz (Ohio)..
Under compensation act, boy under 18, prohibited from working at extra-
hazardous employment by statute, was not within Workmen's Com-
pensation Act, and had common-law action against employer for injuries,
though original employment was at nonhazardous work and lawful.
Kruczkowski v. Polonia Pub. Co. (Mich.)....

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§ 367. — INDEPENDENT CONTRACTORS AND THEIR EMPLOYEES.
Contract sufficiently showed on facts stated that relation was that of sub-
contractor and contractor and not employer and employee. Mobley v.
J. S. Rogers Co. (Ind.).
Where building owner called repairing contractor and asked him to do work
and later sent plasterer in habit of doing odd jobs for him, charging
by hour or by job, such plasterer was not in employ of contractor, who
was not liable to pay compensation. Woodhall v. Irwin et al. (Mich.).. 296
Where one who contracted to wreck smokestack for $140. arranged with
decedent to supervise work for half amount, after deduction of expenses,
with further agreement that if such half did not equal $5 a day, for
time decedent devoted to work, deficiency would be made up, decedent
occupied position of foreman for contractor and as such was his em-
ployee. American Steel Foundries v. Industrial Board et al. (Ill.)......
Commission cannot enforce claims of employee of subcontractor against
principal contractor. Thaxter v. Finn, Sheriff (Cal.)...
Painter working by job and by hour as to certain work connected with resi-
dence of employer and who hired his own assistants was an independent
contractor. Hungerford v. Bonn et al. (N. Y.)...

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One employed to cut with his own tools such timber as was best suited to his
purpose in converting it into units for which he was to be paid and
over which employer exercised no control was an "independent con-
tractor." Parsons et al. v. Industrial Accident Commission et al. (Cal.). 619
Award cannot be made against principal contractor for death of laborer
hired by one to whom principal contractor has subcontracted part of his
wood-cutting contract. Tsangournos et al. v. Smith et al.-In re Fidelity
& Casualty Co. of New York (N. Y.)..
Whether one is employee or independent contractor depends on whether
he represents the master as to the result of work or only as to the means
and if representing master only as to result and selecting means, he
is an "independent contractor"-that overseer or architect is to see that
work complies with contract does not change character of independent
contractor-manner of payment, though often significant, is not neces-
sarily controlling-if contract gives employer no control over details of
work, but leaves that to party undertaking work, he is an "independent
contractor"-in view of act, one contracting to furnish engine, man and
team to county for daily pay was an "independent contractor." Pace
V. Appanoose County (Iowa).
Mechanic engaged by defendant to take down smoke stack and put up new
one, who used his own appliances and furnished needed help in addition
to two men assigned by employer and who had charge of work and was
told to present his bill and whose heirs after death were paid a bill for
work by hour was "employee" and not an "independent contractor."
Cummings v. Underwood Silk Fabric Co., Inc., et al.-In re Travelers'
Ins. Co. (N. Y.).

$368.

884

.... 923

CONTRACTS OF EMPLOYMENT MADE OR TO BE PERFORMED
IN FOREIGN STATE.
Where Colorado contractor employed in Colorado a resident to act as fore-
man on jobs in a number of states, such employee was protected by
Colorado Act. Industrial Commission of Colorado et al. v. Etna Life Ins.
Co. (Col.)

759

$369. INJURIES OCCURRING IN FOREIGN STATE.
Act does not apply to employer who moved his plant from state before
passage of act, retaining only sales agency in state, though employee
who was injured in another state contracted with employer while plant
was in New York. Smith v. Heine Safety Boiler Co. et al. (N. Y.).... 540
Contractor residing at Faribault, Minn. did general contracting business.
throughout the Northwest, having general office at Faribault, foreman
residing in Minnesota and hired there and injured while employed on job
at N. D. and later died, business was localized in Minnesota and employ-
ment of deceased was referable to business conducted in Minnesota and
Minnesota act. State ex rel Maryland Casualty Co. v. District Court, Rice
County, et al. (Minn.)....

$370.

371.

INJURIES ARISING OUT OF OR IN COURSE OF EMPLOYMENT.

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Action under federal Act for injuries received while dumping ties into a
All, evidence showed that ties and other rubbish were put into fill
to strengthen and make it safer. Ohio Valley Electric Ry. Co. v. Brum-
field's Adm'r (Ky.)...

"Accident" as it occurs in the Statute is used in its popular sense and means
any unlooked for mishap or untoward event not expected or designed-
"personal injury" as used refers not to some break in some part of the
body or some wound thereon but rather to consequence or disability that
results therefrom. Indian Creek Coal & Mining Co. v. Calvert et al.
(Ind.)

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Recovery can be had by injured party, if living, or his dependents, if he is
dead, only where claimant or his decedent suffered personal injury by
accident arising out of employment. Phil Hollenbach Co. v. Hollenbach.
(Ky.)
Where quarry employee stopping at commissary maintained with employer's
consent was struck by stone thrown from blast and killed, injury arose
out of employment. Merlino v. Connecticut Quarries Co. (Conn.).... 781
Such acts as are necessary to life, comfort and convenience of servant while
at work, though strictly personal to himself and not acts of service are
incidental to service and injury sustained in their performance arises out
of employment. Whiting-Mead Commercial Co. v. Industrial Accident
Commission (Cal.)
"Personal injury" as used in Compensation Act is confined to injuries of ac-
cidental origin and such diseases as naturally result therefrom and in-
cludes any form of bodily harm or incapacity caused by either external
violence or Physical force. Lane v. Horn & Hardart Baking Co. (Pa.). 927
To bring servant within Compensation Law, injury must be received while
he is doing duty he is employed to perform and also as natural incident
of work, being risk connected with employment flowing therefrom as
natural consequence. King et al. v. State Ins. Fund et al.-In re
Standard Oil Co. of New York (N. Y.).

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Accident "arising out of and in course of employment" must result from risk
reasonably incidental to employment-Employers' Liability and Com-
pensation Act giving compensation for injuries arising out of and in
course of employment, was intended to protect employees against risk
or hazard taken to perform master's task. Pace v. Appanoose County
(Iowa)

$372.

CAUSE OF INJURY IN GENERAL.
To entitle claimant to compensation it must be shown that causative danger
was peculiar to work and not common to neighborhood. Malone V.
Detroit United Ry. (Mich.).

By "Accident" as employed in Statute is meant something unusual, unex-
pected and undesigned. Phil Hollenbach Co. v. Hollenbach (Ky.).
Death caused by heat prostration arose out of employment only if employee,
because of particular circumstances under which he was required to
work, was subjected to special hazard from heat, not risked by public in
general. Campbell v. Clausen-Flanagan Brewery et al.-In re Brewers'
Mut. Indemnity Ins. Co (N. Y.)...
Under federal Employers' Liability Act, railroad was liable for injuries to
its conductor caused by an undesired emergency in air brake, if brake
was defective or engineer's act was willful. Scott v. Atlantic Coast Line
R. Co. (S. C.)....
Death from accident in course of employment means death resulting from
unforeseen violence to physical body in course of employment, as dis-
tinguished from ordinary or occupation diseases; "accident" being event
occurring without foresight or expectation, but casually or fortutiously.
Lane v. Horn & Hardart Baking Co. (Pa.)..
Under Compensation Act providing for compensation for injuries, the words
"accident" and "accidental injury" include every injury suffered in
course of employment for which there was an existing right of action
when act was passed, and injuries must be traceable to definite time,
place and cause and be without affirmative act or design of employee.
Matthiessen & Hegeler Zinc Co. v. Industrial Board et al. (Ill.).
The act contemplates injuries by accident only, and does not cover occupa-
tional diseases-if accident causing injury is a mishap or fortuitous
happening, not expected or designed, it is an "accident in course
employment." McCauley v. Imperial Woolen Co. et al. (Pa.)..

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Not unreasonable for workmen to smoke out of doors during intervals in their
work where it does not interfere with their duties-where burlap apron
caught fire from stroke of match to smoke, and employee was fatally
burned, award was properly made and injury was su ̈ered in course of
employment. Dzikowska v. Superior Steel Co. et al. (Pa.)..
Crossing street to mail letter was within course of employment and injury
from automobile was covered. Globe Indemnity Co. v. Industrial Acci-
dent Commission et al. (Cal.)...

Mere fact that injury to employee is occasioned by sportive or malicious act
of fellow employee does not of itself establish that injury arose out of
employment, but employee injured by such means is entitled to com-
pensation. Stuart v. Kansas City (Kan.)....

If employee tripped on stairs, not on account of employment, but on account
of physical or mental condition or any cause other than employment, de-
pendent cannot recover Hallett's Case (Mass.).....
Warehouse employee who went to washroom to clean up after day's work
and was killed by electric wire suffered from accident arising in course
of employment. Phil Hollenbach Co. v. Hollenbach (Ky.).
Two boys skylarking and ordered to work, ten minutes later one was struck
a blow on side of head fracturing skull, accident was risk reasonably
within contemplation of master and incident to employment, the master
having knowledge of skylarking. Mountain Ice Co. v. Court of Common
Pleas in and for Morris County et al (N. J.)..

The word "accident" as usually interpreted in compensation statutes, will
in most cases. be applied to both heat stroke and sunstroke. Walsh v.
River Spinning Co. (R. I.)....

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School teacher on way to boarding house from school assaulted and injured
by a man-held the injuries were not caused by accident arising out of
employment. State ex rel. Common School Dist. No. 1 in Itasca County
v. District Court of Itasca County (Minn.)..
Where employee in wrecking buildings was burned while lighting cigarette
by match, igniting a turpentine soaked bandage on his hand, injury was
one arising out of employment, indulgence in tobacco satisfying a natural
want and being necessarily contemplated by employer. Whiting-Mead
Commercial Co. v. Industrial Accident Commission (Cal.)
.. 746
Under Compensation Act defining injury by accident in course of employ-
ment, death from germ infection, to be within act, must be sudden
development from some abrupt violence to physical structure of body
and not result of gradual development from long exposure to natural
dangers incident to employment. McCauley v. Imperial Woolen Co. et
al. (Pa.)

Death of servant from arsenical poisoning, though occurring as cumulative
result of many years' exposure to same conditions, arose from "accident"

930

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