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.)..
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
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.) 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.)..
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.
§ 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.)
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.)
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.)
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.)....
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.).
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.)....
§ 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.)...
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.).
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.)
$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.)....
INJURIES ARISING OUT OF OR IN COURSE OF EMPLOYMENT.
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.)
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.).
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)
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.)..
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.)....
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"
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