recover against the latter, the right of the widow to compensation from the employer under the law being unimpaired thereby.

The Wisconsin statute contains a provision as to subrogation, and in a case in which the employer had settled with his employee and was therefore subrogated to the latter's rights against the third person for the injury, the employer subsequently assigned this right of action to the injured employee; the third person thereupon objected that the employer should be made a party plaintiff, which contention the court rejected, ruling that there had been a full and complete assignment. (McGarvey v. Independent Oil & Grease Co., 146 N. W. 895.)

The Michigan law permits recovery against either the employer or the third person, and if the employer pays he is entitled to take action against the third person for his own reimbursement. It was contended that this fixed the amount of the recovery against the third person at the amount awarded as compensation and was unconstitutional, as depriving the third party of his right to appear and defend in the action and have his rights determined by a court of competent jurisdiction. The supreme court of the State (Grand Rapids Lumber Co. v. Blair, 157 N. W., 29) held that this was not the proper construction of the law and that as properly construed it was not unconstitutional, merely making the payment of compensation prima facie evidence of the liability of the third party, which was within the power of the legislature.

In a case before the Illinois board the claimant contended that the amount received by him from the third party had nothing to do with his claim against the employer for compensation. This was not allowed by the board, and as the amount so received exceeded the amount recoverable as compensation, no claim was considered, the application being dismissed.

In the case of Bryant v. Fissell (86 Atl. 458), already noticed, the negligence of the independent contractor whose employee caused the death by dropping the piece of metal on the workman below, was offered as a reason why Bryant's employer should not be held as the responsible party. The Supreme Court of New Jersey said on this point that when there has been an acceptance of the elective compensation system provided by the act, it is expressly stated that compensation shall be made by the employer without regard to his negligence. "The fact, if it be a fact, that the representative of the decedent has also a right of action against a third party in no wise militates against the present action. The act under which this suit is brought, and which at best provides only for partial compensation, nowhere provides specifically or by implication that an employee shall be deprived of his right to compensation thereunder merely

because the accident gives rise to a right of recovery against a third party."

Another phase of this general question was discussed in a case arising under the law of Washington. (Northern Pacific Ry. Co. v. Meese, 36 Sup. Ct. 223.) Action was first brought in the district court of the United States to recover from a railway company for an injury caused by the alleged negligence of its employees in moving cars in a brewery yard, causing a fatal injury to an employee of the brewery. This action was in damages as against a third person. The compensation law of the State provides that all claims against employers for injuries to workmen shall be determined in accordance with the provisions of this act, and civil suits for damages are abolished, with some exceptions. The statute provides that if an injury to a workman occurs away from the plant of his employer, and is due to the negligence or wrong of a third person, action may be brought against the third person or a claim made under the compensation law, at the option of the injured workman or his survivors. In the case at hand the injury did not occur away from but at the plant of his employer, and the court held that as the right of action for fatal injuries was entirely a statutory one, it was within the power of the legislature to make the provisions that it had, and that it was the evident intent to abolish private controversies and civil actions except as specifically provided for, the case in hand not coming within the exception. Since, therefore, the provision of the law was thus clear, the remedy by a claim for compensation was held to be exclusive, and the action against the railroad company was dismissed (206 Fed. 222). On appeal, however, this decision was reversed by the circuit court of appeals (211 Fed. 254), but the Supreme Court of the United States, on further appeal, adopted the opinion of the trial court, reversing the court of appeals. This accords also with the view taken by the supreme court of the State (Peet v. Mills, 76 Wash. 437; 136 Pac. 685), which declares that the law is exclusive, reaching to "every injury sustained by any workman while engaged in any such [included] industry, regardless of the cause of the injury or the negligence to which it might be attributed."

Not going so far as the above, but representing something of the same attitude, was a case decided by the Supreme Court of New York, appellate division (Winter v. Peter Doelger Brewing Co., 162 N. Y. Supp. 469), in which a driver employed by a brewery was injured by reason of a defective elevator on the premises of a saloon. where he was making a delivery. Instead of taking compensation of the employer, he sued the saloon owner as the negligent third party liable for the injury. As it happened, the saloon was owned by the employing brewery company, which resisted suit on the ground that

the case was one of compensation for injuries to an employee. This contention was sustained by the court, it saying that the fact that the elevator and saloon were located at some distance from the employer's brewery did not make the employer a third party or in any way change the relation of the plaintiff to his employer, so that his rights were based on the compensation law and not on the law of negligence. (Reversing appellate term, 159 N. Y. Supp. 113.)

Another phase of the question was before the same court in a case (In re Cahill, 159 N. Y. Supp. 1060) where a deceased employee left a widow and a mother entitled to claim benefits. It was held that the widow's action in electing to sue the third party for damages did not debar the mother's claim for compensation under the act.

TEMPORARY DISABILITY.

As compensation terminates on recovery from the effects of the injury, it is a fundamental necessity of administration to determine when this occurs, and when there are other causes that intervene to prolong disability, while the matter of malingering must also be taken into consideration.

The industrial commission of California ruled in two very similar cases that the prolongation of disability due to the failure of the injured man to take the necessary exercise required to restore a fractured limb to use was not ground for prolonging payments, saying in one instance that the law does not contemplate compensation for mere pain and inconvenience, but only for disability to labor, which would not exist in the instant case had the injured man possessed the necessary resolution to put the injured member into service. In another case before this commission it was said that the applicant must prove his actual disability as a physical fact as distinguished from an inability to secure employment on account of the scarcity of opportunities, saying, "compensation is payable for inability to do work, not for inability to find work to do." In contrast with this is the ruling of the Supreme Court of Kansas (Gorrell v. Battelle, 144 Pac. 244), in which a man unable to secure employment after recovery from a total disability by reason of a continuing partial disability, was held entitled to full compensation until work was obtained, the court holding that compensation is to be paid for the loss of earning power as the result of the injury, whether manifested in inability to perform obtainable work or inability to secure work to do. This accords with the ruling of the Supreme Court of Massachusetts that the act of that State covers not only physical incapacity but also inability to obtain work, resulting directly from a physical injury. (In re Sullivan, 105 N. E. 463; In re Septimo, 107 N. E. 63.) The California rulings noted above accord with a statement in an opinion by the superior court of New Haven County, Conn., in which

it was said that the law was not concerned with the fact of whether an injured man had recovered and was actually earning the same amount as before the injury or whether he had found a position where he could so earn, but that the statute was satisfied with his adequate recovery to be able to do so.

In a case before a compensation commissioner of Connecticut the injured man's action in delaying recovery by the use of intoxicants was held adequate ground for denying a claim for compensation for 16 weeks, the award being for but 6 weeks. In another case a Connecticut commissioner denied disability benefits where a claimant refused to do work that was offered him and which he was able to do, because he had formed the idea that it would interfere with his getting pay for his injury. Apparently departing from the foregoing practice is the ruling in another case before a commissioner of the State in which the former employer had no work for the injured man on the declared termination of his disability, and the latter found other employment which he was compelled to withdraw from after two days, being unable to continue. It was ruled that the injured man was entitled to employment by his former employer, or that suitable work should be found for him. This corresponds also with a ruling by the industrial board of Indiana to the effect that the employer was liable for compensation until such recovery as. would enable the injured man to resume his former occupation, though the employer might discharge his liability by furnishing work which the employee could do.

The industrial accident board of Massachusetts required an employer to continue payments in behalf of an employee who lost a foot beyond the period of the schedule award for partial disability "until occupation suitable for a one-legged man is found."

Taking the same view as that of the California commission above was a ruling by the Massachusetts board terminating benefits on a fixed date, as the continuing incapacity could be attributed to the lack of confidence of the injured man in using his leg, while a finding of a committee of arbitration in this State was affirmed by the board where there was claim of a continuing pain and disability which led the man to stop working, although it was held that "he would be better off if he worked," so that, though he had not entirely recovered, compensation benefits should not be extended beyond an elapsed date, incapacity from the injury having ceased at that time. Two cases involving alleged simulation required a determination of actual capacity to work where there were vigorous claims of pain and sensitiveness and inability to use the muscles, medical examination showing injuries neither to the physical nor to the nervous system, cases of a class that are so definitely recognized in German practice as to receive the designation "Renten-hysteria" or compensation

hysteria. The industrial commission of Wisconsin, in commenting on a similar condition, said that "the employee's trouble is largely of the mind, increased perhaps by the prospect of compensation. Compensation for an adequate period of recovery was allowed, but not for the period for which claim was made. The necessity of returning to work, even at the cost of some inconvenience, was emphasized by the commission in another case in which it was said that there would necessarily be some tenderness of amputated fingers, no matter when the injured man returned to work, and compensation was terminated at the time of the healing of the wounds.

A situation the converse to that appearing in some of the foregoing cases was before the industrial board of Illinois in a case in which an employee whose fractured patella had been joined by a silver wire was taking exercise as directed by his physician and felt something give way, an examination showing that the wire had pulled through the bone. As against the contention of the employer that this was a second injury for which he was not liable, the board ruled that the condition of the employee was due to the original injury, and that he was doing what could reasonably be expected, as advised by the physician, and payments were continued. The same view was taken of a case before the California commission, where a broken collar bone parted after a supposed uniting, no accident intervening, and the original employer was held responsible.

PARTIAL DISABILITY.

Where there is a surviving effect of an injury, amounting to a permanent partial disability, the question of the amount of compensation for designated injuries is fixed in many of the laws by schedule, while in other cases proportional awards or estimated rates must be allowed; questions of possible benefits from operations, etc., are also involved. (See Medical treatment, p. 272.)

The Connecticut statute contains no provision as to partial loss of vision, and in a case before a commissioner of the State an award for the period of temporary total disability was all that was found possible under the act, though there was a 50 per cent impairment of the vision of one eye, which might not, however, and it was testified that it probably would not, interfere with the employee's earning capacity. In a case before another commissioner of the same State there was no evident loss of earning capacity at the time, but it was ordered that in view of the possibility of further decrease or total loss of vision on account of the injury, "this claim remains active in the files and is subject to revision." The Pennsylvania schedule

1 An interesting recent contribution to the literature on this subject is a Francis X. Dercum, M. D., entitled "Hysteria and Accident Compensation," 1916.

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