the extrahazardous employments enumerated in the act, and that Congress having in no way legislated in the particular premises, the State had the right to enact laws incidentally affecting such commerce. It was held, therefore, that any right of recovery which the plaintiff might have would be by way of a claim under the compensation law of the State. (Stoll v. Pacific Coast S. S. Co., 205 Fed. 169.)

Not using the same language as to strict exclusiveness, but maintaining the applicability of the laws, are to be found the supreme courts of Connecticut (Kennerson v. Thames Towboat Co.) and of Minnesota (Lindstrom v. Mutual S. S. Co., 156 N. W. 669); while the industrial commission of Ohio, though refusing to consider cases of interstate commerce by railroad, as already noted, applied the compensation law to the case of an employee swept overboard from a tug in Lake Erie and drowned.

Alien beneficiaries. The laws are in most instances specific enough on the point of the inclusion or exclusion of nonresident alien beneficiaries to make construction unnecessary. The Illinois statute is not thus specific, however, but the industrial board of the State ruled that the wording of the law, "the people of the State," includes aliens as among those workmen covered by the act, so that their nonresident dependents are entitled to benefits; this view was confirmed when a case involving the point came before the supreme court of the State. (Victor Chemical Works v. Industrial Board, 113 N. E. 173.) The New Jersey statute excludes nonresident beneficiaries, and inasmuch as employees within the State have no other remedy than that provided by the act, it was held that no right survives, so that Lord Campbell's Act giving the right of recovery for fatal injuries no longer avails for nonresident aliens, the only right that the injured man had having died with him. (Gregutis v. Waclark Wire Work, 91 Atl. 98; 92 Atl. 354.)

The law of California makes no reference to alien beneficiaries, but does include alien employees, and the contention was made (Western Metal Supply Co. v. Pillsbury, 156 Pac. 491) that this made possible payments to alien and nonresident dependents; that no public purpose cognizable by the legislature was to be served thereby, and that therefore the law was unconstitutional. The supreme court of the State rejected this view, saying that "There is no constitutional or rational ground for limiting the benefits of this legislative scheme to citizens or residents of this State. If the employment was such as to fall within the State's lawmaking jurisdiction, the legislature certainly had the power to pass laws operating uniformly upon all persons affected by such employment."

ARISING OUT OF AND IN COURSE OF EMPLOYMENT.

The majority of the laws of the States contain as a limitation on the injuries to be compensated the statement that they must arise out of and in the course of employment, and the rulings on this point are necessarily numerous. The phrase is copied from the British workmen's compensation law, and in considering it frequent use has been made of English decisions. The supreme court of New Jersey discussed its effect in an early case (Bryant v. Fissell, 86 Atl. 458), reaching the conclusion that "an accident arises in the course of the employment' if it occurs while the employee is doing what a man so employed might reasonably do within the time during which he is employed, and at a place where he may reasonably be during that time." Since, however, the law of New Jersey contains also the words "out of " and requires that both conditions be met, further consideration was had, concluding "that an accident arises 'out of' the employment when it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incident to it. * A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service." In this case a carpenter engaged in the erection of a building was injured by the falling of material in charge of the ironwork contractor, who was a separate employer of labor. It was held that the injury was received in the course of and arising out of the employment. The same court applied this doctrine to include the case of a workman killed while crossing railroad tracks on the way from the place of his employment to the toilet customarily used by persons in the employer's service. (Zabriskie v. Erie R. Co., 88 Atl. 824.) In discussing the same phraseology the supreme judicial court of Massachusetts (In re Employers' Liability Assurance Corporation, 102 N. E. 697, frequently cited as "McNicol's Case ") first laid down the rule that both conditions of the phrase must be complied with, and in discussing the effect of these words said:

* *

It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that an injury is received "in the course of " the employment when it comes while the workman is doing the duty which he is employed to perform. It arises "out of " the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by

the nature of the employment, then it arises "out of" the employment. But it excludes an injury which can not fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been forseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

On these grounds the court allowed benefits for the death of a man killed by blows and kicks of a fellow workman who was "in an intoxicated frenzy of passion," his habits and disposition having been known to his employer, the award being based "upon the causal connection between the injury of the deceased and the conditions under which the defendant required him to work."

Difficulty remains in the determination of the question as to whether the hazard is due to the employment or to conditions affecting the public generally. Thus a delivery man walking along the street and falling over a bucket of broken glass, receiving fatal injuries, was denied compensation by the New York Supreme Court, appellate division (Newman v. Newman, 155 N. Y. Supp. 665, affirmed by the court of appeals, 113 N. E. 332), the court saying that he was exposed to no other hazard than that to which any one walking in the same locality would have been exposed, so that it was not an incident of the employment. The supreme court of the State, however, appellate division, allowed compensation in a case (Miller e. Taylor, 159 N. Y. Supp. 999), in which the driver of an express truck was struck by an automobile while crossing the street to deliver a package, distinguishing this from the Newman case above; and the same court affirmed the finding of the industrial commission in a case (Putnam v. Murray, 160 N. Y. Supp. 811), where a driver engaged in collecting dirt from the streets of a city stepped on a rusty nail, the injury resulting in tetanus and death, the contention that the injury was the result merely of conditions to which the public generally was exposed not being admitted as a defense. The employee was held to have been engaged in a hazardous employment under the act, and "the mere fact that a person not engaged in a hazardous employment was exposed to the danger of a similar injury should he chance to travel that way furnishes no argument for a denial of the right of compensation to a person whose hazardous employment compelled his constant presence on the street."

To the same effect was the ruling of a Pennsylvania referee, who held that a delivery boy struck by an automobile on the street and killed was at the time engaged in furthering his employer's interests,

and compensation was accordingly allowed. So also a Minnesota court ruled that a driver was exceptionally exposed to street risks, so that one hurt by the fall of material from a building which he was passing was held to have been injured by an accident arising out of and in course of the employment (Mahowald v. Thompson-Starrett Co., 158 N. W. 913). An award was also made by the Massachusetts board in the case of a street sweeper injured by a runaway horse, over the contention of the city of New Bedford that such an occurrence was not a natural incident of the injured man's employment.

The California commission allowed the claim of a motorman who had reported for work five minutes before starting time, according to rule, but slipped and fell on the street while going from the barn to his car; it was contended that the nature of his employment was not such as to expose him to street risks more than the average man, but the commission stated that this rule should not be applied too broadly, but with reference to the particular circumstances of the

Where an office employee, after finishing her day's work, took some of her employer's letters to deposit in the post office on the way home and was struck by a train, the New York commission rejected the claim for compensation on the ground that she was following the same route that she would have followed if she had been going home without undertaking to mail the letters; that she was exposed to no unusual hazard due to the employment; and that the injury did not arise out of and in the course of the employment.

The Supreme Court of Wisconsin made a ruling similar to that of the California commission in the case of the motorman above, in the instance of an employee who reported at 7.30 a. m. for orders as to work which was to begin at 8, and while proceeding along the street under orders to his work place, slipped and fell; the court held that the status of employer and employee existed, and that the accident grew out of and was incidental to his employment. (City of Milwaukee v. Althoff, 145 N. W. 238.)

Where the injury was due to lightning stroke, the Michigan Supreme Court held that the exposure of a railroad section man who sought shelter in a barn which was struck by lightning, was in no way different from the risk of other members of the community, and was not caused by or in connection with his employment (Klawinski v. Lake Shore & M. S. Ry., 152 N. W. 213)—a position that was assumed also by the Supreme Court of Wisconsin (Hoenig v. Industrial Commission, 150 N. W. 996), deciding on a case in which a workman on a dam was killed by lightning. The Supreme Court of Minnesota, on the other hand, affirmed an award of the lower court in behalf of a claimant, where a man was injured by lightning while seeking shelter under a tree at the time of a storm, the court

saying that there was evidence to sustain a finding that the injury arose out of the employment. (State ex rel. People's Coal & Ice Co. 2. District Court of Ramsey County, 153 N. W. 119.)

The Pennsylvania statute provides compensation for accidents in the course of employment, omitting the limitation as to "arising out of." It was held, therefore, by the compensation board of the State that as death by lightning is unquestionably an accident, and the law does not require that it should arise out of the employment, ant employee killed by lightning while engaged in the regular course of his employer's business was within the act.

The award in the Minnesota case last named necessarily involved the conclusion that the injured man had not left employment while thus seeking shelter, and this question was also involved in the case of a railroad lineman who took shelter from a storm under cars standing on an adjacent track. The cars moving without warning, he was injured, and the Supreme Court of New York, appellate division, affirmed an allowance of compensation on the ground that to seek available shelter was not leaving the employment but was incident thereto. (Moore v. Lehigh Valley R. R. Co., 154 N. Y. Supp. 628.)

Where one's employment is of such a nature as not to involve fixed working hours, difficulty may arise in determining between service for the employer and the pursuit of private ends. Thus a real estate and insurance agent whose time was occupied largely according to his own judgment, was injured while on his way to keep an appointment with a prospective customer. The injury was held by the California Industrial Commission to be while in his employer's service, without regard to the time. The same body awarded compensation to a traveling salesman injured in an automobile accident while returning from a search for prospective customers, basing the decision on the same grounds. This principle was also applied by a compensation commissioner of Connecticut in the case of a general manager of his employer's business, who was killed while going on an errand for his employer's benefit after the expiration of the usual working time. The industrial accident board of Texas approved the claim of a traveling salesman who volunteered to assist workmen repairing a bridge which he was to cross on his way from one town to another, a delay of several hours being imminent.

Taking a contrary position to that assumed in the foregoing rulings, the Supreme Court of Massachusetts laid down a rule of a strictness that would go far to limit the application of a compensation law in cases where an employee was not restricted in his movements to a set of conditions strictly affected by his employment. The superior court had affirmed the award of the State industrial accident board in a case where a life insurance agent was injured