governed by provisions of former statute, employee having no right under statute as amended-rights of employee and insurer were fixed by law as it existed prior to amendment though employee presented claim to board after amendment took place. Southern Surety Co. v. Lucero. (Tex.).. Compensation awarded under act is not damages for injuries sustained but compensation pure and simple, being merely another term for salary or wages. Woodcock v. Board of Education of Salt Lake City. (Utah.) Employers' liability and workmen's compensation statute is remedial statute and should be liberally construed. Barber v. Jones Shoe. Co. (N. H.) Common-law right of action for damages accruing from injury received by workman in course of employment is abolished by act except as in act otherwise provided. Zenor v. Spokane & I. E. R. Co. (Wash.) Act is construed liberally. In re Stewart. (Ind.)

609

620

560

634

515

Act should have reasonable and liberal construction. Brown et al. v. Bristol Last Block Co et al. (Vt.)

628

Donahue v.

855

Act will be liberally considered to carry out general purpose.
Thorndike & Hix, Inc. (Me.).

$849. RETROACTIVE OPERATION OF STATUTES.
Occupation of steamship company's stevedore was maritime in nature and
his widow's claim for compensation could not have been made under
State Act.-Federal statute saving to such claimants, rights and reme-
dies under State Act, held not retroactive. Hogan v. United Fruit
Co. (Pa.)

Federal statute making State compensation laws applicable to maritime and interstate commerce accidents is not retroactive. O'Brien v. Det Forende Damphibs Selskab (N. J.)......

894

867

Widow of employee who died before amendment defining dependency became effective, cannot avall herself of amended section. Collwell V. Bedford Stone & Construction Co. (Ind.). $350. ACCEPTANCE OR REJECTION OF STATUTE, AND ELECTION OF

REMEDIES.

.......

......

823

114

351. RIGHT TO ELECT, AND EFFECT OF ELECTION IN GENERAL Where administratrix brought action for her deceased husband's negligent death, and was defeated on the merits, she did not thereby make election barring claim under act for benefits to widow and minor dependents. State Indust. Comm. v. Brady & Gioe (N. Y.).. Private steam railroad not engaged as common carrier, which has not given notice of election to come under act, remains within act and is liable to injured employee. State ex rel. Winston-Dear Co. v. District Court of St. Louis County, Eleventh Judicial District, et al. (Minn.). Employee's surviving wife and children awarded compensation cannot recover damages for death frorn employer's joint tort-feasor. Mayor and Council of Hagerstown v. Schreiner (Md.).......

§ 352.

.....

711

858

216

WILLFUL OR INTENTIONAL ACTS OR OMISSIONS OF EM. PLOYER. Evidence showing miner's death by car released when coupling broke, showing links broke sometimes one or two a week, made out prima facie case of negligence, and by failing to offer evidence in contradiction or explanation, employer stood convicted of negligence. Ayshire Coal Co. v. West (Ind.) Unless by failing to house gears, employer failed to comply with order of commission or safety requirements of act, employer was not guilty of gross negligence. Employer was not guilty of "willful misconduct" within act, merely because it failed to house gears unless elective officer with willful disregard of employees' safety, consciously failed to house such gears to avert injury Helme v. Great Westen Milling Co. (Cal.) Recommendations to house certain gears by engineer representing commission while going through plant, is not equivalent to order entered by commission. In absence of order by commission in manner provided by act, employers' duty in regard to dangerous machinery is to use such safeguards as are reasonably adequate to have place of employment as free from danger as nature of employment will reasonably permit. Helme v. Great Western Milling Co. (Cal.)

353. — INJURIES NOT PROVIDED FOR IN COMPENSATION ACT. Wherever injury results in disability, permanent or partial, injury comes within act, even though there be associated injuries resulting from accident not specifically mentioned in act. Morris v. Muldoon. (N. Y.)

1854. Servant injured through negligence of third person, may recover under act from third person receiving compensation from employer, subject to right of employer to be indemnified out of damages recovered for amount of compensation paid. Black v. Chicago Great Western R. Co. (Iowa) To entitle third party employer whose negligent act causes injury to employee of another, to protection of act it must appear that act complained of arose out of or had some relation to his business as to which he was employer mere fact that he is employer of labor is not sufficient to bring

RIGHT OF ACTION AGAINST THIRD PERSON.

570

218

544

him within provision of act-such employer is not necessarily engaged in work of his employment or conduct of affairs when going from residence to place of business, though he makes use of automobile owned by himinjured employee may maintain action against third party employer notwithstanding settlement had with own employer and payment of amount agreed upon-recovery in such action will conclude employer and not expose third party to second suit. Podgorski v. Kerwin. (Minn.) Bridge in city is part of "plant" or "premises" of city within act and carpenter engaged in repairing it cannot maintain action against Electric Company, whose negligence in stringing wires under bridge caused injury to him. Zenor v. Spokane & I. E. R. Co. (Wash.) Receipt of compensation by plaintiff, employee of third party subscriber from surety company for injury by defendant railroad and his assignment of so much of recovery as might be had or would indemnify it, did not absolutely bar action against railroad. Lancaster et al. v. Hunter. (Tex.) 612

634

$355. RIGHT OF ACTION BY EMPLOYEE'S PARENTS. In cases where act applies to injury sustained by minor employee, there can be no recovery by parent for loss of wages of such employee. Hartman v. Unexcelled Mfg. Co. (N. J.) .. 422

356. — COMMON-LAW DEFENSES ABOLISHED. In common-law action by injured employee under act, recovery can be had against master employing more than five employees although negligence was that of fellow servants. Nadeau v. Caribou, Water, Light & Power Co. (Me.)

Master who has elected not to operate under act, is not permitted to make defense of contributory negligence in action for death of servant. Ayshire Coal Co. v. West. (Ind.)

Farm employee injured by negligence of fellow servant is not precluded from recovery under statute by act. Burns. v. Southern Pac. Co. (Cal.) Where employer has not elected to come under act, common-law defenses are not available unless "such negligence was willful". Smith v. Hyne (Mic..)

Act eliminates defense of contributory negligence. Smith v. White (La.). Negligence does not defeat recovery under act. Brown et al. v. Bristol Last Block Co. et al. (Vt.)

$357.

358.

PERSONS ENTITLED TO ELECT.

238

216

358

407

531

628

386

FORM AND REQUISITES OF ELECTION (INCLUDING IMPLIED ELECTION). Held that employer who had given notice of election not to come within former act, was by new act brought within its operation in absence of notice of election to contrary given subsequent to its enactment. Chicago R. I. & P. Ry. Co. v. Fuller. (Kans.). Held that all employers of five or more workmen engaged in industries characterized by statute as especially dangerous, are subject to act except where notice to contrary has been given subsequent to enactment, irrespective of what may have been done before that time. Wegele v. IsmertHincke Milling Co. (Kans.) To entitle employer to benefits and protection of state act, he must comply with insurance provisions thereof, failure to do which will expose him to liability as before law was enacted.-Order relieving employer from insurance provisions, authorized on showing of solvency, can have no retroactive operation and does not effect or impair right of action at law which accrued prior to date when employer became subject to act. Nash v. Minneapolis & St. L. Ry., Co. (Minn.) 416

Sole effect of failure of master to post notice required by act is to extend for six month's delay in which notice of injury must be given to employer and does not render such Act inapplicable. Colorado v. Johnson Iron Works. (La.). Employee, by failing to give notice provided by statute, waives right to claim damages except under certain articles and thus waives right to assert common-law liability and consents to terms of act, and may be compelled to submit to physical examination in action to set aside award and for compensation in lump sum. Texas Employers' Ins. Ass'n. v. Downing. (Tex.)

391

392

582

In absence of finding that employer or employee gave required notice to be exempt from provisions of act which will be presumed that both accepted such provisions. Collwell v. Bedford Stone & Construction Co. (Ind.)... 823 359. TIME OF ELECTION. $ 360.

RELATION OF PARTIES,
WITHIN STATUTE.

AND PERSONS AND

EMPLOYMENTS

Policy against liability under act, covering electrical store, did not cover injuries to chauffeur of employer when gratuitously taking former employee to home. Western Indemnity Co. v. Indust. Acc. Comm. (Cal.) 140 Relation of employer and employee is created in every instance by contract either expressed or implied. Nissen Transfer & Storage Co. v. Miller. (Ind.)........ 519

$361.

IN GENERAL. Shot-firer, paid by miner's union with sums substracted from amounts paid per ton to miners, who had right to select, supervise and discharge him, was employee of company within act. Bidwell Coal Co. v. Davidson (Iowa) Service to proprietors of sanitarium rendered by maid performing general housework in addition to attending on patients was not within exception of act for "domestic service". Gernhardt v. Industrial Accident Commission. (Cal.) Under provisions of act, naming employees entitled to benefits, excluding officers and directors of corporations, one under contract of hire, injured in performance of duties as superintendent and head miller is not excluded from benefits though he is also director of employing corporation. Millers' Mutual Casualty Co. v. Hoover. (Tex.) Persons operating junk yard were engaged in extrahazardous occupation where they used shears driven by electric motor and acetylene torch. Cinofsky v. Industrial Commission. (Ill.) Applicant for position as conductor, injured before he had received appointment and while being instructed in duties under arrangement whereby he was to receive no compensation until such time, except bonus in case ultimately accepted, was not employee of railroad at time of injury. Fineberg v. Public Service Railway Co. (N. J.)

Insurance company employee, who during spare hours, acted as newspaper agent and reporter was employee of newspaper within Act. Kinsman v. Hartford Courant Co. (Conn.)

Provision of Act defining trade, business, etc., must be intrepreted as though the word "business" immediately preceded the word "undertaking"-Mere owning and renting of houses for purpose of investment, is not "business" within Act. Lauzier v. Indust. Acc. Comm. (Cal.).. Employer conducting department store, nonhazardous occupation not covered by Act, who had carpenter shop on one floor in connection with business, employing carpenters regularly to work about the store, was conducting hazardous business as far as carpenters were concerned and they were entitled to compensation for injuries. Alterman v. A. I. Namm & Son (N. Y.)

71

151

325

185

299

361

355

426

Drug store employee, injured while compounding prescription, is not within Act, as business is not "hazardous occupation". Freess v. Kleinau. (N. Y.). 430 Retail grocer hiring contractor to build foundation under his dwelling, disconnected from store, is not liable for injury to employee of contractor not insured. Alabach v. Industrial Commission et al. (II.). Salesman of corporation on weekly wages who was also dierctor but without salary or income as such is "employee" within act. Eagleson v. Harry G. Preston Co. (Pa.)..

One driving wagon belonging to employer with Own team for delivering to customers of company, cannot recover for injuries sustained on falling from wagon on theory that company not electing to come under act was engaged in "carriage by land" as delivery was only incidental to business --such driver could not recover on theory that company was maintaining "structure" as he was not employed about plant of company-conceding that company was engaged in business in which statutory municipal regulations are imposed, driver could not recover as delivery was incidental and injury did not arise in employment in which regulations were imposed. Mattoon Clear Water Co. v. Industrial Commission et al. (Ill.)..

or

When act was amended to include employees of railroad companies operating steam railroads as common carriers, legislative intent was that private steam railroads not so engaged should remain therein. State ex rel. Winston-Dear Co. v. District Court of St. Louis County, Eleventh Judicial District, et al. (Minn.)..

Test to determine whether mill employee is entitled to benefit of act is to inquire whether he was engaged in manual and mehanical labor, whether any part of work was done in proximity to hoisting apparatus or power driven machinery and whether five or more persons engaged in manual or mechanical labor were employed in or about the mill. Regnier v. Rand (N. H.) Owner of rented farm when building barn on farm for farm use is not within act. State ex rel. Foss v. Nelson, District Judge. (Minn) Manufacturer of chemical preparations employing electric machinery

was

667

744

671

engaged in extrahazardous employment and employee, handy man, was within protection of act. Hydrox Chemical Co. v. Industrial Comm. (Ill) 811 Mere wholesale dealing in dress trimmings is not hazardous occupation. 879

V.

Hirschberg. Schultz & Co. (U. S.)...

Statute defining "employee" adds nothing to general definition

City ordinance reguiating width of stalls and passageways

Kass

as one who works for and under control of another for hire Stricker V. Indust. Comm. Utah) in private stables does not apply to stable of employer distributing dairy products to make such business "extra hazardous" Bowman Dairy Co. v. Indust. Comm. (Ill.)

Where mining company, according to custom, on request, loaned regular employee to another company to assist in extinguishing fire, subject to control of latter company, it became his temporary employer, though

920

786

his wages were not fixed, and therefore his death in such work was accident in course of employment. Tarr v. Hecla Coal & Coke Co. (Pa.). 904 Where employee engaged in hazardous employment of maintenance and care of buildings was specially employed, after working hours on Saturday, to repair automobile used in employer's business, and was thereby killed, death did not occur in hazardous employment nor in employment in connection with maintenance and care of buildings to justify award. Kender v. Reineking. (N. Y.)

870

33

Qne permitted to sleep in barn and hired at various times for specific work, for which he was separately and almost immediately paid, not on payroll, was engaged in casual employment within act, and not entitled to award for injuries. Diamond Livery v. Indust. Comm. (Ill.). Servant of oil company injured while at work, paid for at so much a month, whether employment required one day or one month, assured when hired there would be three or four weeks' work or longer, held a "casual employee" within act. Consumers' Mut. Oil. Co. v. Indust. Comm. (Ill.). 31 Mere fact that employment is for one job only does not necessarily take it from under act. Cinofsky v. Industrial Commission. (Ill.) One employed for dollar an hour to repair well, occupying only two hours, held "casual employee' not entitled to Compensation under Act. Otmer v. Perry. (N. J.) Provision excluding from act, persons whose employment is casual in character and not in regular course of business, does not exclude mine employee, loaned to another company to assist in extinguishing fire. .Tarr v. Hecla Coal & Coke Co. (Pa.)

185

423

904

136

Employee of one engaged in a business prohibited by statute, held not excluded from benefits of act. Krobitzsch v. Industrial Accident Commission. (Cal.) Claimant, directed by employer, building contractor and speculator, who had bought farm for purpose of improvment and sale, to prune apple trees and was injured by fall, held not "farm laborer". O'Dell v. Bowman. (N. Y.)...439 Where a number of farmers purchased threshing machine for own use, such primary purpose is controlling, and one so employed to assist in threshing operations is agricultural laborer within act, even though grain of others than owners of the machine was threshed. Jones et al. v. Indus. Comm. of Utah et al. (Utah) Although corporation was mainly engaged in cattle raising with farming as side issue, employee injured while performing labor in farming operations or furtherance thereof, would be "farm laborer"-servant employed to poison prairie dogs for employer who was engaged in cattle raising and incidentally conducting farm operations, held not a farm laborer. C. C. Slaughter Cattle Co. v. Pastrana. (Tex.)

One employed at dollar an hour on work which took two hours and in which he was injured, held to be "independent contractor" and not "employee" within Act. Otmer v. Perry. (N. J.) One is "employee when rendering services subject to will of other in manner, means and result to be obtained, but is "independent contractor" if carrying on work independent of such control. Kinsman v. Hartford Courant Co. (Conn.)

.....

747

599

421

.... 361

Claim for injuries received by city patrolman removing electric police station, ordered by superior officer, comes within act. Ryan v. City of New York (N. Y.).. One appointed laborer under Military Law on farm owned by National Guard Association is not state employee. Muller v. City of New York (N. Y.)

bulb in

Patrolman whose chief duties were to guard prisoners and keep part of building in order, does not because of duties, become turnkey or janitor, but retains position as public officer not protected by act. Ryan v. City of New York (N. Y.).

Policeman of city killed by charged electric post bent over and obstructing sidewalk which he was endeavoring to straighten, held "official" not an employee of city. City of Chicago v. Indust. Comm. (Ill.) Municipality is not employer within Act of specified date. Hornig v. Town of Canby. (Ore.) Fireman regularly appointed under city charter is member of city fire department, is not "Employee within Act." McDonald v. City of New Haven. (Conn.)

§ 365.

........

EMPLOYEES ENGAGED IN INTERSTATE COMMERCE. If work in which railroad employee was engaged was part of interstate commerce, state act is inapplicable.-Generally, when applicability of Federal Act is uncertain, character of employment in relation to commerce may be adquately tested by inquiring whether injured employee was engaged in work so closely connected with interestate transportation as practically to be part of it.-Where lineman, when he had sustained fatal shock was working on wires so that if power had been shortcircuited

110

105

718

501

887

779

341

through his body, it would have stopped cars, work was essentially part of interstate transportation and Federal Act, not State Act, governed case. Southern Pac. Co. v. Indust. Acc. Comm. (Cal.) Evidence that switchman injured in railroad yards was engaged in throwing switch for passing of engine for purpose not shown and in directing movement to other part of yard held not to sustain allegation that he was employed in intestate commerce. Missouri Pac. R. Co. v. Mette (U. S.) 475 Member of railroad wrecking crew killed while assisting in replacing derailed engine, not permanently assigned to particular branch of traffic, was not in interstate commerce. Reynolds v. Phila. & R. Ry. Co. (Pa.). If railroad employee lost life while in interstate commerce, case is within Federal Act and there can be no recovery under State Act-Flagging of interstate train is interstate commerce-Railroad's watchman on public road crossed by tracks used for both intra- and inter-state commerce was not engaged in interstate commerce when killed flagging an intrastate train. Di Donato v. Philadelphia & R. Ry. Co. (Pa.) ....... 897

For purposes of applicability of Act, it is immaterial whether contract of employment was made by minor directly or by parent directly r by minor as agent of parent. Hartman v. Unexcelled Mfg. Co. (N. J.) That employee is minor does not prevent his being bound by statute which places employees within act in absence of affirmative election to contrary. Chicago, R. I. & P. Ry. Co. v. Fuller. (Kans.) Where boy under 16 was employed to operate machine in violation of statute and without the required affidavit as to age, contract of hiring was invalid being out the erquired affidavit as to age, contract of hiring was invalid, being misdemeanor and act was no bar to common-law action for injury suffered. New Albany Box & Basket Co. v. Davidson. (Ind.) Female factory worker over 15 but not 16 though employed without permit required, was "workman", so that her remedy for injuries was under act and not at common-law. Rasi v. Howard Mfg. Co. (Wash)

$ 367.

INDEPENDENT CONTRACTORS AND THEIR EMPLOYEES. Truck owner, doing trucking business, engaged to do hauling for another without agreement as to compensation, without being required to report before or after going to work and allowed to haul as he pleased, held an Independent contractor-act restricts the term "independent contractor." Flickinger v. Indust. Acc. Comm. (Cal.)......

Right to supervise, control and direct work is one of tests for determining whether person is independent contractor or employee, but is not sole and only test. One who takes contracts for cleaning walls, agreeing to furnish own tools and material, help, compensation insurance for his employees, under no obligation to do work in person and paid on weekly estimates of value of work done, is independent contractor and not employee. Barrett v. Seldon-Breck Construction Co. (Neb.)

One who was hired to be paid by day, for certain work, but temporarily was to perform other work, paid by piece, using tools of employer, was not independent contractor while so engaged, but was employee within act. Cinofsky v. Industrial Commission. (Ill.)

One who contracted to draw logs at price per cord. furnishing and caring for team, and assuming no obligation to do work at any particular time but merely at his convenience in connection with other business, was independent contractor and not employee. Robichaud's Case. Appeal of American Mutual Liability Insurance Co. (Mass.) Claimant, whose immediate employer was one employed by city to collect garbage, was entitled to compensation from city for injury sustained while performing services growing out of employment, immediate employer not being subject to provisions of act. City of Milwaukee V. Fera. (Wis.) Where truck owner agreed for term to furnish truck and devote exclusive personal services in delivery of goods for company, under its control_and direction, he was its employee entitled to compensation for injury. EngSkell Co. v. Indust. Acc. Comm. (Cal.)

Where contractor to excavate under agreement that he was to receive timbers as compensation, but no payment in money, rendered services with derrick to contractor to shore up adjacent building, while rendering such services he was employee of shoring contractor. Mandatto v. Hudson Shoring Co. (N. Y.)

Painter, who agrees with house owner furnishing material, to paint given number of windows with own brushes in own manner, and for fixed sum for entire work, is "independent contractor" not "employee'. Prince v. Schwartz et al. (N. Y)..

That employer reserves right to control scope of work does not necessarily make employee mere servant but is principal consideration to determine whether employee was independent contractor-that employer may, at any time, terminate work by discharging such employee has considerable weight. That employee is bound to furnish materials or tools with which work is done affords but little light on the question-mode of payment for work is important element-one regularly employed, every day to haul machinery with own horse and wagon, giving all time and subject to discharge and employer's control, as to details, held an em

900

422

386

509

632

291

185

247

336

352

436

727