WITNESSES.

Sufficiency of corroboration of witness under twelve years of age who
was not sworn on prosecution for robbery, larceny and assault.

See CRIMES, 5.

Examination of witness before trial.

See DEPOSITIONS, 1.

WORKMEN'S COMPENSATION LAW.

Bills

1. Allowance for doctors' bills paid by claimant — award modified.
of doctors, employed by claimant with the permission of his employer,
for services rendered, held, not to have been excessive and to have been
properly allowed.

On conflicting evidence, held, that the award should be modified by
deducting therefrom a sum paid the claimant on account of his disability,
and as so modified affirmed. Humphreys v. Chevrolet Motor Co., 4.

2. Death from anthrax · evidence insufficient to sustain award
- presump-
tion under section 21 hearsay testimony. An award under the Workmen's
Compensation Law for death from anthrax was sought to be sustained on
two theories, first, an injury arising in the course of the employment, con-
sisting of an abrasion of the nose caused by a wire on a bale of hay through
which abrasion the anthrax infection entered the system of the deceased;
and second, an injury not arising in the course of the employment, consisting
of a boil in his nose through an incision of which the disease infection
entered.

Held, that there is no competent evidence that the deceased received an
abrasion from a wire or otherwise or that he contracted the disease in the
course of his employment, and, therefore, the award must be reversed
and the matter remitted to the Commission.

A claimant must prove an accident arising out of and in the course of the
employment and cannot rely on the presumption of section 21 of the Work-
men's Compensation Law as a substitute for such proof.

A claimant must produce some legal evidence and cannot rely exclusively
on hearsay testimony. White v. Am. Soc. for Prevention of Cruelty to
Animals, 6.

3. Basis of compensation subdivision 3 of section 14 applied. Where
it appears that a claimant under the Workmen's Compensation Law entered
the service of the employer on May twenty-fourth and continued therein
until the time of his injury on December twenty-second of the same year;
that he did not work steadily, but within the dates mentioned worked
119 days; that for six days prior to the accident he had been working as
a fireman, but prior to that time had been a coal passer and received less
compensation, and prior to May twenty-fourth it does not appear what
he did or what, if anything, he earned, his compensation must be computed
under subdivision 3 of section 14 of the Workmen's Compensation Law
which provides that if subdivisions 1 or 2 " cannot reasonably and fairly
be applied," then the annual earnings of the claimant shall be arrived at
in the manner indicated in said subdivision 3.

The true test is the average weekly earnings, regard being had to the
known and recognized incidents of the employment, including the element
of discontinuousness. Rooney v. Great Lakes Transit Corporation, 10.

4. Consequential results of accidental injury hysterical blindness" and
loss of sight of left eye resulting from removal of right eye necessitated by injury
thereto section 10 and section 3, subdivision 7, construed. Where in a
proceeding under the Workmen's Compensation Law it appears that
simultaneously with the removal of the right eye of the claimant, necessitated
by an injury thereto, the sight of the left eye became affected and is now
almost wholly lost; that no injury has been done to the eye ball, the optic
nerve or any physical thing constituting a part of the organ of sight, but
that the claimant's trouble is "traumatic neurosis" or "hysterical blind-
ness," an award should be affirmed.

Section 10 of the Workmen's Compensation Law, providing that "Every
employer
shall pay or provide
compensation

* *

* **

*

for the disability or death of his employee resulting from an accidental
personal injury," and making the consequential results of an accidental
injury compensable, is not limited by the provision of subdivision 7 of

WORKMEN'S COMPENSATION LAW- Continued.
section 3, which merely makes certain that conditions consequent upon
disease following accidental injury shall be regarded as themselves the
consequence of such injury. Weber v. Haiss Manufacturing Co., 12.

5. Death resulting from accidental injury followed by erysipelas and pneu-
monia evidence - statements of deceased as to what followed immediately
after accident. In a proceeding under the Workmen's Compensation Law
it appeared that the claimant's intestate, who had suffered a slight attack
of pneumonia and had recovered therefrom in about two weeks, about a
year later, while at work for his employer as helper and driver at a brewery,
fell on the cement floor, striking on the back of his head, cutting a large
gash; that the wound was dressed and a few days later erysipelas developed
and also a second attack of pneumonia, and that about a month later he
died. On all the evidence,

Held, that death was caused by the accident. The erysipelas was the
result of an infection through the wound and pneumonia followed with
that as one of the producing causes.

Statements by the deceased as to what followed immediately after his
fall were competent. Wanda v. Jamestown Brewing Co., 17.

6. Injury to minor · evidence insufficient to sustain increase in award.
The claimant, a minor, was receiving twelve dollars per week when injured
and under an agreement with his employer it was provided that he should
receive two-thirds of his weekly salary subject to the approval of the State
Industrial Commission. The Commission found that as a matter of fact
the claimant would be entitled to an increase in wages to eighteen dollars
per week and fixed the compensation on that basis at eleven dollars and
fifty-four cents per week. Held, that there was no evidence on which such
increase could be based. Markowitz v. Watters Laboratories, 267.

66

no

7. Wholesale dealing in dress trimmings not hazardous occupation
evidence to sustain finding that employer was engaged in manufacture
death of traveling salesman in hotel bedroom, caused by escaping gas, not in
course of employment. The mere wholesale dealing in dress trimmings is
not a hazardous occupation within the meaning of the Workmen's Com-
pensation Law.

There was no evidence to sustain a finding that the employer was engaged
in the "manufacture" of dress trimmings, or of any goods whatever.

The death of a traveling salesman working his route did not arise out
of and in the course of his employment where it appeared that he was killed
at a hotel by gas escaping from a jet in his room. Kass v. Hirschberg,
Schutz & Co., 300.

8. Injury to head alleged to have caused " sleeping sickness no evidence
to sustain award. The claimant in the course of his employment hit his
head against a desk and thereafter encephalitis, commonly known as
sleeping sickness," developed and it was found that this disease was
"caused by a fracture to the base of the skull " sustained by the claimant
when he hit his head. Held, that there was no evidence to sustain the
finding that claimant's skull was fractured or that his sickness was caused
by the injury received and, therefore, the award should be reversed. Dono-
van v. Alliance Electric Co., 303.

--

9. Dislocated shoulder subsequent fall followed by death no evidence
to sustain finding as to cause of death or that it was induced by first accident
consideration of opinion of chief medical examiner rendered outside hearing
improper. The decedent sustained injuries on June 1, 1918, consisting of a
dislocated shoulder and contusions and several weeks thereafter he fell in
the street and was assisted to his home where he died the same day without
medical attendance. The death certificate, which was signed by a person
who had never seen the decedent in his life, stated that the cause of death
was chronic cardiac valvular disease." The physician who attended
decedent after the first accident testified that he examined his heart and
found no difficulty therewith and the decedent's widow testified that the
decedent had never had heart trouble.

66

Held, that there was no evidence to support the finding that "The cause
of death is given as chronic cardiac valvular disease.' The injuries sus-
tained on June 1, 1918, so aggravated a previously existing heart lesion as
to bring about decompensation and an acute condition which resulted in

WORKMEN'S COMPENSATION LAW - Continued.

the death" of the decedent, as the death certificate being presumptive
evidence only was conclusively overcome by the testimony of the physician
and the circumstances under which the certificate was made.

The opinion rendered by the chief medical examiner of the Commission
did not supply the deficiency as it was rendered outside of the hearing and
assumed the cause of death to be as stated in the death certificate and is
based thereon. Nestor v. Pabst Brewing Co., 312.

10. Negligence·

-

-

--

election of remedies against uninsured employer — action
at common law · defenses - contributory negligence and assumption of risk
when decedent not guilty of contributory negligence as matter of law - burden
of proof-notice to agent of defective appliances damages charge. An
injured employee of an uninsured employer has an election to ask for an
award under the Workmen's Compensation Law or to sue independently
upon his common-law right, but if he elect to proceed on his common-law
right he must both plead and prove that his employer was not insured.
If he does sue neither assumption of risk nor contributory negligence can
be interposed as a defense to the action.

It cannot be held as a matter of law that the decedent was guilty of con-
tributory negligence where it appears that she was acting as janitress in
an apartment house, that it was one of her duties to remove the garbage
which was sent down on the dumbwaiter elevator, that she walked into
the well of the elevator and called for it to be sent down, and that while
she was there it fell and caused the injuries which resulted in her death,
for if the elevator had been properly equipped it would not have fallen
and she had the right to assume that it was so equipped.

The burden of proof as to contributory negligence in a death case is on
the defendant.

The notice given to the defendant's brother-in-law, who was in charge
of the building, of the defect in the elevator was sufficient to carry the case
to the jury on the question of the defendant's negligence.

It was error for the court to charge on the question of damages that if
the jury find for the plaintiff on the question of liability "then
get down to the evidence and determine how much the life of this woman
was worth to her husband and her child," for the defendant's liability
under the statute is a liability only for the pecuniary loss to the person or
persons for whose benefit the action is brought, resulting from the death
caused by the defendant's negligence. Grimm v. Maurocordato, 550.

11. Cause of accident to be proved - drowning of decedent not arising “out
of" employment. The cause of an accident resulting in the death of an
employee for which an award is claimed under the Workmen's Compensa-
tion Law cannot be presumed but must be proved.

The decedent, who was working on the bank of a stream, proceeded up
the stream a short distance for a purpose incidental to his employment and
was later found drowned in about five feet of water at a point where there
was no embankment or dock, but it was no part of his employment to enter
the water. It was shown that he was subject to fits and when found his
body was all curled up in about the same condition as it was when he
had a fit a short time before. On all the evidence, held, that the accident
did not arise out of" the employment. Minerly v. Kingsbury Con-
struction Co., 618.

66

12. Injury not received within employment decedent killed while going
on errand for himself with employer's permission. An emploves was not
acting in the line of his employment at the time of the accident causing
his death, where the facts show that he was employed principally to drive
a truck but sometimes worked on his employer's farm; that the work on
the afternoon of the accident consisted of drawing a load of coal from the
coal yard and a load of wood from the woods to the farm house; that at
the decedent's request and for his own convenience he was given permission
to go to the shoe shop to get a heavier pair of shoes; that instead of going
directly to the shop he went to a saloon and while going from there to the
post office received the injury causing his death. Gisner v. Dunlop, 633.
13. Death of game protector of Conservation Commission caused by accidental
pneumonia contracted in course of employment. The death of a
game protector of the State Conservation Commission was caused by an

injury

-

WORKMEN'S COMPENSATION LAW - Continued.
accidental injury arising out of and in the course of his employment, within
the meaning of the Workmen's Compensation Law, where it appears that,
while trying to remove a plug from a State boat in order to let the water
out of it, he was compelled to work with his arm and shoulder under water,
and as a result he contracted lobar pneumonia which together with heart
toxeima caused his death. Christian v. State Conservation Commission, 635.
14. Determination of average weekly wage where claimant has worked but
short time - determination of average daily wage where week of fifty-four hours
was divided into five days of ten hours and one day of four hours. The
claimant, having worked but three weeks prior to the accident, the deter-
mination of the average weekly wage as a basis on which to compute the
amount of the award should have been made under subdivision 2 of section
14 of the Workmen's Compensation Law.

Where the basic week in the mill in which the claimant worked was
fifty-four hours, which, for the convenience of the employees, was divided
into five days of ten hours each and one day of four hours, the proper
method of determining the average daily wage of the claimant on the basis
of the average wage of other employees is to divide the average weekly
wage used as a basis by six, and not by five and one-half.
Roskie v.
Amsterdam Yarn Mills, Inc., 649.

15. Determination of average weekly wage · findings not sustained. Where
it appeared that the claimant was receiving at the time of her injury two
dollars and fifty cents per day; that a short time prior to the injury she
was put to work on a machine that had been left idle by striking employees
without any understanding as to an increase in wages; that men who
operated similar machines on piece work received from twenty-four to
twenty-six dollars per week; that other women working on similar machines
were being paid two dollars and fifty cents per day, the finding of the State
Industrial Commission that the average weekly wage of the claimant was
twenty-eight dollars and eighty-four cents cannot be sustained. Vaughn
v. Barnet Leather Co., 652.

16. Findings of dependency at time of accident and contribution by decedent
to claimants' support sustained by evidence amount of award not controlled
by amount of contribution to claimants' support. The findings of the State
Industrial Commission that the decedent contributed to the support of the
claimants and that they were dependent on him at the time of the accident
are supported by the evidence.

The dependency of the claimants on the decedent for support must be
determined, as of the time of the accident, under section 16 of the Work-
men's Compensation Law, as amended by chapter 622 of the Laws of 1916.

The amount of an award to dependent claimants is not controlled or
limited by the amount that the decedent actually contributed to their
support prior to his death, but is to be determined under subdivision 4 of
section 16 of the Workmen's Compensation Law. Hess v. Donner Steel
Co., 667.

17. Cause of accident existence of conditions surrounding place of accident
which might have caused it. The decedent, who was employed by a printing
company, was found lying on his back between two rolls of paper with his
skull fractured. While there was no evidence to show what caused him
to fall, the conditions surrounding the place of the accident -
grease on
the concrete floor, rolls of paper three feet in diameter with rods projecting
from the ends, absence of sufficient light, presence of noxious and enervating
gases, and close and tepid atmosphere, all of which were connected with
the employment and business and which might have been the cause of the
fall, were such as to sustain the award. Graffe v. Art Color Printing Co.,
669.

18. Brakeman handling intrastate freight on train engaged in interstate
commerce. A brakeman on a local freight train carrying interstate ship-
ments who, in addition to his work as brakeman, acted as flagman, assisted
in switching cars to and from his train and helped in loading and unloading
less than car lots at way stations, is engaged in interstate commerce
while transferring an intrastate shipment from a car standing on a switch
to a car in the train on which he is working, and he is not entitled to an

WORKMEN'S COMPENSATION LAW - Continued.

award under the Workmen's Compensation Law for an injury received
while engaged in making such transfer. Evans v. United States Railroad
Administration, 704.

19. Determination of weekly wage where claimant employed for five weeks
only preceding injury when average wages of employee of same class used
as basis
- compensation for loss of leg where weekly wage less than five dollars.
Where a claimant had been engaged for a period of five weeks only before
the injury, her average weekly wage cannot be determined by applying
the provision of subdivision 1 of section 14 of the Workmen's Compensation
Law.

And where the claimant was new at the work her weekly wage should
be determined under subdivision 2 of section 14 of the Workmen's Com-
pensation Law by taking as a standard the average wage of an employee of
the same class in a similar employment in the same or a neighboring place.
Compensation awarded for the loss of a leg where the weekly wage is
less than five dollars per week must be, under subdivision 5 of section 15
of the Workmen's Compensation Law, the full amount of the weekly
wage. For v. Bachnor Brothers Co., Inc., 706.

20. Decedent not engaged in interstate commerce - award sustained — pre-
sumption under section 21. Where the evidence does not show that the
decedent had any connection with interstate commerce except such as can
be inferred from the fact that he was a section foreman employed by a
railroad corporation engaged in interstate and intrastate commerce, and it
can be reasonably inferred that he was engaged on new construction, an
award should be sustained, in view of the presumptions authorized by
section 21 of the Workmen's Compensation Law. Saccomanno v. Grasse
River Railroad Corp., 761.

21. Injury to president, general manager and principal stockholder of
employer award affirmed · · section 54, subdivision 6, applied. Where the
claimant, who was the president, general manager and principal stockholder
of the employer, was injured while performing his duties as general manager,
and the policy of insurance issued to the employer covered the claimant
and the premium paid therefor specifically covered his proportion of the
insurance, an award should be affirmed, in view of subdivision 6 of section
54 of the Workmen's Compensation Law. Kolpien v. O'Donnell Lumber
Co., 764.

22. Section 54, subdivision 6, construed and applied injury to general
manager, secretary and treasurer and principal stockholder of employer
premium based on payroll including estimation of wage value of claimant
award affirmed. Subdivision 6 of section 54 of the Workmen's Compensation
Law, added by chapter 622 of the Laws of 1916, is in effect permissive and
contemplates future action; it is not retroactive.

Where the claimant, who was general manager, secretary and treasurer
and principal stockholder of the employer, was insured as general manager
only, and was injured while engaged in performing his duties as such in
and about the employer's plant, and the evidence sustains the finding that
the estimation of his wage value was reasonable and separately stated in
and added to the valuation of the payroll of the corporation upon which
the whole premium was computed, an award should be affirmed, in view
of section 21 and subdivision 6 of section 54 of the Workmen's Compensation
Law. Hubbs v. Addison Electric Light & Power Co., 765.

23. Injury to eye- award set aside and matter remitted. Cortina v.

Lathrop & Shea Co., 928.

24. Dependent father and mother residing in foreign country award
limited to twenty-five per cent of weekly wage. Skillaris v. United States
R. R. Administration, 928.