97. In re Martinelli, 219 Mass. 58, | It has long been the law that, where | Super. 385; Labbé v. La Compagnie 106 NE 557; State v. Cass County Dist. Ct., 129 Minn. 156, 151 NW 910; De Voe v. New York State R. Cos., 169 App. Div. 472, 155 NYS 12; In re Sickles, 156 NYS 864, 865. "The statute should be given a liberal interpretation, but liberality should not be stretched into extravagance." In re Sickles, supra. "Although the workmen's compensation act is to be liberally construed, the court cannot go outside its language for the purpose of assuming a power not granted either expressly or impliedly." In re Martinelli, 219 Mass. 58, 60, 106 NE 557. 98. Turnquist V. Hannon, Mass. 560, 107 NE 443; In re Nichols, 217 Mass. 3, 5, 104 NE 566, AnnCas 1915C 862; Northwestern Iron Co. v. Industrial Commn., 154 Wis. 97, 142 NW 271, LRA1916A 366, AnnCas 1915B 877. 219 "The statute not having been designed to promote, but to decrease the opportunity for unnecessary litigation, its purpose will be best subserved if plain words are given their ordinary signification." In re Nichols, supra. "In giving construction to such statutes words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the text and subject matter relative to which they are employed." Northwestern Iron Co. v. Industrial Commn., 154 Wis. 97, 101, 142 NW 271, LRA1916A 366, AnnCas1915B 877. "This act ought to be interpreted according to the obvious sense of its words and exceptions are not to be read into its general provisions unless required by strong reasons." Turnquist Hannon, V. Mass. 560, 563 107 NE 443. 99. 219 Tel. Sexton v. Newark Dist. Co., 84 N. J. L. 85, 86 A 451 [aff 85 N. J. L. 701, 91 A 1070]. 1. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA 1916A 436. 2. State v. Cass County Dist. Ct., 129 Minn. 156, 151 NW 910; Wendt v. Industrial Ins. Commn., 80 Wash. 111, 141 P 311; Mellen Lumber Co. v. Industrial Commn., 154 Wis. 114, 119, 142 NW 187, LRA1916A 374, AnnCas 1915B 997. "It is argued that a literal interpretation of a statute should not be followed where such interpretation would lead to an absurd consequence. The statute in question may be inequitable, but this does not make it absurd." Mellen Lumber Co. v. Industrial Commn., supra. [a] Construction in favor of constitutionality.-"Nor may it [the court] interpret the section under consideration in a particular way to allay a fear that the validity of the act may, at some future time, be assailed, if such particular interpretation be not now given." Connole v. Norfolk, etc., R. Co., 216 Fed. 823, 827. [b] Interpretation by commission. -"The last contention of the commission is that the interpretation of the act by the commission under advice from the attorney general ought to be given weight in the event that the act is of doubtful construction. an act is uncertain or obscure, the interpretation of that governmental department having to do with its administration and enforcement is entitled to great weight. Giving full force to such a rule and recognizing it as we have in our previous decisions, it does not seem to us that, in answering the question submitted by this appeal, we find the act so uncertain or obscure as to make it proper or necessary to seek administrative interpretation in ascertaining its meaning." Wendt v. Industrial Ins. Commn., 80 Wash. 111, 118, 141 P 311. 3. McQueeney V. Sutphen, 167 App. Div. 528, 153 NYS 554; International Harvester Co. V. Industrial Commn., 157 Wis. 167, 147 NW 53, AnnCas1916B 330. "This statute does not mean one thing when it is to the advantage of one employee to so maintain, and at the same time mean something directly contrary when it is to the advantage of some other employee to make a different claim." International Harvester Co. v. Industrial Commn., 157 Wis. 167, 170, 147 NW 53, AnnCas1916B 330. [a] Self-insurers and insurers in state fund.-"In effect, therefore, the law requires that the ordinary individual and firm, and perhaps the great mass of employers, must insure in the State fund or otherwise. The law, therefore, should be construed on the theory that it contemplates insurance in the State fund, and employers who insure in the State fund or otherwise, or who are self-insurers, should fairly be governed by the same rule. It is the right of the individual employee and of the employer that they should be treated the same as all other employees and employers within the act.' McQueeney v. Sutphen, 167 App. Div. 528, 532, 153 NYS 554. 4. Pellett V. State Industrial Commn., 162 Wis. 596, 156 NW 956. 5. Grand Rapids Lumber Co. v. Blair, (Mich.) 157 NW 29; Ives v. South Buffalo R. Co., 201 N. Y. 271, 296, 94 NE 431, 34 LRANS 162, Ann Cas1912B 156 (where the court said of the New York law of 1910 [L. (1910) c 674]: "There is, of course, in this country no direct legal authority upon the subject of the liability sought to be imposed by this statute, for the theory is not merely new in our system of jurisprudence, but plainly antagonistic to its basic idea. The English authorities are of no assistance to us, because in the king's courts the decrees of the Parliament are the supreme law of the land, although they are interesting in their disclosures of the paternalism which logically results from a universal employer's liability based solely upon the relation of employer and employee, and not upon fault in the employer"). 6. Grand Rapids Lumber Co. v. Blair, (Mich.) 157 NW 29. 7. Necessity that injury occur while employee is engaged in employment see infra § 53. Julien, 48 Que. Super. 322; Michaud, v. Tremblay, 48 Que. Super. 289; Tremblay v. Bail Saint Paul Lumber Co., 46 Que. Super. 203; Duquette v. La Compagnie de Pulpe, etc., Co., 12 Que. Pr. 359; Novico v. E. B. Eddy Co., 12 Que Pr. 319; Provost v. St. Gabriel Lumber Co., 12 Que. Pr. 285. [a] Farm laborers not included. (1) Uphoff v. State Industrial Bd., 271 Ill. 312, 111 NE 128; In re Keaney, 217 Mass. 5, 7, 104 NE 438 (where the court said: "The workmen's compensation act was not intended to confer its advantages upon farm laborers, or to impose its burdens upon farmers. St. 1911, c. 751, Part 1, § 2. The legislative policy of exempting them from statutory benefits and liabilities established in addition to those of the common law, disclosed in the employers' liability act, St. 1909, c. 514, § 142, has been continued in the workmen's compensation act. A farmer employing laborers harm in not undertaking to become a in agriculture suffers no subscriber under the workmen's compensation act"); Shafer v. Parke, (Mich.) 159 NW 304; Smid v. Townsend, (Alta.) 8 West Wkly 474. "Any man employed to work on a farm, and to perform the work ordinarily done there, is a farm laborer." Shafer v. Parke, (Mich.) 159 NW 304, 305. words (2) 9. American Ice Co. v. Fitzhugh, 128 Md. 382, 97 A 999; Tomassi v. NYS 905; Gleisner v. Gross, 170 App. Christensen; 171 App. Div. 284, 156 Div. 37, 155 NYS 946. [a] Particular defined.(1) 'Cargo' ordinarily means the lading or freight of a ship or other vessel; the goods, merchandise or whatever is conveyed in a vessel or boat." Tomassi v. Christensen, 171 App. Div. 284, 285, 156 NYS 905. (2) 'Longshore work' not only refers to the loading and unloading of cargoes, but to the moving or handling of any part of a cargo upon any dock, platform or place, or in any warehouse or other place of storage." Tomassi V. Christensen, supra. (3) "Enterprise' is 'an undertaking of hazard; an arduous attempt.' (15 Cyc. 1053, and cited cases.) Lexicographers define an enterprise as 'an undertaking; something projected and attempted; an attempt or project, particularly an undertaking of some importance or one requiring boldness, energy or perseverance; an arduous or hazardous attempt, as, a warlike enterprise.'" Uphoff v. State Industrial Bd., 271 Ill. 312, 317, 111 NE 128 (holding that the building of a corn crib could not be classed as an enterprise). [b] Occupational diseases.-Under the English act of 1906 relating to diseases in particular employments, a surface laborer at the pit head is not presumably engaged in coal mining. Scullion v. Cadzow Coal Co., 7 BWCC 833. [c] In British Columbia the term "engineering work" has been held 8. See statutory provisions; and not to include clearing land from the Garment v. Charles Austin Co., 34 natural growth__ thereon. Basanta v. Ont. L. 417, 25 Dom LR 833, 9 OntWN | Canadian Pac. R. Co., 16 B. C. 304, 5 47: Desilets V. Laplante, 48 Que. BWCC 723. 11 under them it shall be presumed that the claim statute is confined to hazardous employments, no comes within their provisions.10 Even such a proemployment can be treated as such, unless it is vision, however, will not permit a forced construc- by a fair construction of the act declared so to be,12 tion to be given to their wording.1 Where the or has been so classified by a board or commis[a] Rules of construction.-"First, | Seeman, 170 App. Div. 133, 155 NYS the express mention of the matters embraced in the several groups necexcludes those not mentioned (Aultman, etc., Co. v. Syme, 163 N. Y. 54, 57, 57 NE 168, 79 AmSR 565); and, second, the rule of ejusdem generis would prevent any general language to be extended beyond the special language used (Lantry v. Mede, 127 App. Div. 557, 560, 111 NYS 833; Peo. v. White, 64 App. Div. 390, 392, 72 NYS 91)." Aylesworth v. Phoenix Cheese Co., 170 App. Div. 34, 36, 155 NYS 916. 10. Larsen v. Paine Drug Co., 218 N. Y. 252, 112 NE 725 [aff 169 App. Div. 838, 155 NYS 759]; Post v. Burger, 216 N. Y. 544, 111 NE 351, Annessarily Cas1916B 158; Powley v. Vivian, 169 App. Div. 170, 154 NYS 426; Edwardsen v. Jarvis Lighterage Co., 168 App. Div. 368, 153 NYS 391; Kohler v. Frohmann, 167 App. Div. 533, 153 NYS 559; McQueeney v. Sutphen, 167 App. Div. 528, 153 NYS 554. [a] Reasons for presumption.(1) "In McQueeney v. Sutphen, 167 App. Div. 528, 153 NYS 554, decided at this term of court, we considered the provision of the Compensation Law declaring a presumption that the case of an injured employee is within the law and found the presumption reasonable from the fact that the premium for insurance is based upon the payroll of the employer, the number of employees and the hazards of the different classes comprising each group, that the statute, by basing the amount to be paid into the fund upon the payroll and the number of employees, contemplates that an employee while at work is engaged or may be considered as engaged all the while in the hazardous employment." Spratt V. Sweeney, etc., Co., 168 App. Div. 403, 405, 153 NYS 505 [aff 216 N. Y. 763, 111 NE 1100]. (2) "If the exact cause of the injury is not made plain to the Commission, the employer is at fault, as he has failed properly to report the accident. He has every means of knowing the facts and should not benefit by withholding them. If the employee is engaged in an employment declared hazardous by this law, but at times may work in a non-hazardous employment, it is not unreasonable that the injury should be considered within the act if the employer fails to show all the facts." McQueeney v. Sutphen, 167 App. Div. 528, 530, 153 NYS 554. [b] Extent of presumption. "The statute furthermore provides that in any proceeding for the enforcement of a claim for compensation thereunder 'it shall be presumed, in the absence of substantial evidence to the contrary that the claim comes within the provisions of the act. That legislative presumption is, of course, as operative and binding in this court as in the Commission below. When workman or his survivor asks compensation for occupational accident under the statute, the presumption is clear and sufficient, in the absence of substantial evidence to the contrary, that he was an 'employee' within the meaning of the statute and is entitled to call into activity its machinery for the economic distribution of the loss occasioned by such injury among all patrons of the industry in which he was employed." Rheinwald v. Builders' Brick, etc., Co., 168 App. Div. 425, 433, 153 NYS 598. . a to [b] Particular provisions con- cargoes . or ragpicker picking rags on a dump. or glassware, 638 (includes helper on automobile highways, or elsewhere of vehicles express company, prepara drawn by horses or mules." Daie v. Saunders, 218 N. Y. 59, 112 NE 571 [aff 171 App. Div. 528, 534, 157 NYS 1062] (includes injury to teamster while loading wagon); Costello v. Taylor, 217 injury to a stable employee of an N. Y. 179, 111 NE 755 (includes an through having one of its horses fall on him as he took it out of a stall); Smith v. Price, 168 App. Div. 421, 153 NYS 221 (includes a teamster operating a truck who, after returning to the stable, was putting his horse in the stall in the course of his employment, when the horse squeezed him against the side of the stall causing his death). (13) "Packing houses, abattoirs, manufacture or tion of meats or meat products or glue." De la Gardelle v. Hampton Co., 167 App. Div. 617, 153 NYS 162 (does not include a butcher or an assistant chef in a hotel whose duty it is to distribute meats to the cooks ordered and whose knife accidentally slipped while boning a leg of mutton on the butcher's block, and severed an artery in his groin,. resulting in hemorrhage and death); Kohler v. Frohmann, 167 App. Div. 533, 153 NYS 559 (includes the grinding of meat by an employee of a retail meat dealer). (14) "Pile driving." Mazzarisi v. Ward, 170 App. Div. 868, 156 NYS 964 (includes driving sheeting in construction of a jetty). (15) "Reduction-works, breweries, as whence refuse was removed by 11. Tomassi V. Christensen, 171 12. Uphoff v. State Industrial Bd., 271 Ill. 312, 111 NE 128; Tomassi v. Christensen, 171 App. Div. 284, 156 NYS 905; Aylesworth V. Phoenix Cheese Co., 170 App. Div. 34, 155 NYS 916; Lyon v. Windsor, 159 NYS 162. Bar a sion authorized to determine such classification.13 poration operating and owning an a In visions of the workmen's compensation act (3 Remington & B. Code §§ 6604-1-6604-32), enumerating extra hazardous employments, nor has it been so classified by the industrial insurance commission. Collins V. Terminal Transfer Co., 91 Wash. 463, 157 P 1092. 17 within the statute." Gleisner V. Gross, supra. [a] Illustration.-An employee whose principal duty is to sell women's clothing is not engaged in a "hazardous occupation," within the meaning of the workmen's compensation law (Consol. L. c 67) § 2 group 38, merely because, in the course of his duty as salesman, he incidentally goes to the factory to obtain completed garments. Lyon v. Windsor, 159 NYS 162. 14. Gleisner v. Gross, 170 App. Div. 37, 41, 155 NYS 946; Lyon v. Windsor, 159 NYS 162. See Larsen v. Paine Drug Co., 218 N. Y. 252, 256, 112 NE 275 (where the court said that while it was "not necessary to attempt to lay down a final and universal rule on that subject, we feel perfectly secure, however, in holding that where, as in this case, an employee is injured while performing an act which is fairly incidental to the prosecution of a business and appropriate in carrying it forward and providing for its needs, he or his dependents are not to be barred from recovery because such act is not a step wholly embraced in the precise and characteristic process or operation which has been made the basis of the group in which employ-building). ment is claimed"). "The applicability of the enumerations or definitions of 'employments' deemed entitled to the protection of the statute is of course not to be determined narrowly and constrainedly, but rather in the reasonable and com mon sense manner essential to the vitality of the operation of the statute. If an employee is hired for work falling exclusively or predominantly within one or more of the enumerated occupations, his right to compensation for injury in the course of his employment cannot fairly be made to hinge on a finding that he was, at the moment of injury, engaged in an act clearly constituting the direct doing of work named in the act. The painter's right to compensation for injury sustained his daily trade does not depend on a showing that he was at the moment applying a brush, mixing scaffold. paints, or mounting a If an employee's duties are exclusively or predominantly within an enumerated employment employments, and he is injured while doing work fairly within the scope of the oraccustomed fulfillment dinary and (23) A con WestLR 435, 7 West Wkly 121. (24) Compensation may be allowed under the Nova Scotia Workmen's Compensation Act, in respect of an injury to a teamster while driving truck and a team of horses in the delivery of the output of the factory, although at some distance therefrom, the horses and truck being a part of the factory "plant" under the extended meaning given by 2 subs 2 to the word "factory," so that an injury "on, in or about" any part of the plant is within the statute. O'Toole v. Brandram-Henderson, 48 N. S. 293, 21 Dom LR 83. 13. Collins v. Terminal Transfer Co., 91 Wash. 463, 157 P 1092; Remsnider v. Union Sav., etc., Co., 89 Wash. 87, 154 P 135; Guerrieri v. Industrial Ins. Commn., 84 Wash. 266, 146 P 608. [a] Illustration, The employment as helper to a driver of an automobile truck is not within the pro as or at of such duties, he has a rightful though the particular claim, even act he was doing when mishap befell him would not, of and by itself, ordinarily be described by the use of phraseology contained in the statute or of the doing work enumerated in the statute. To hold otherwise would defeat the fair purpose of the law, and make its operation hinge and its benefits depend on harsh, arbitrary, and unwhich workable distinctions would paralyze its inevitably practical workings. Where, however, as apparently here, the employee's ordinary duties and accustomed scope of activities do not come exclusively or predominantly within the category of enumerated employments, and only casually and incidentally does he do work fairly falling within that category, his right to remuneration must hinge on a finding that he sustained injury while actually and momentarily doing work named in the statute. If the ployer shows that the employee was not so engaged when he met with injury, he is not entitled to reimbursement under the statute, even though he at times did work embraced em 15. Replogle V. Seattle School Dist. No. 1, 84 Wash. 581, 147 P 196 (holding truck driver whose ordinary occupation was nonhazardous within the act, where he was injured while under orders from his superior, engaged in the installation of a dynamo-a hazardous employment). Compare Croteau v. Victoriaville Furniture Co., 40, Que. Super. 44 (where a workman was injured while repairing the roof of a furniture factory at which he was employed, and was held not to have been engaged in the work of 16. Gleisner v. Gross, 170 App. Div. 37, 155 NYS 946. 17. Bargey v. Massaro Macaroni Co., 218 N. Y. 410, 113 NE 407 [aff 170 App. Div. 103, 155 NYS 1076]; Sickles V. Ballston Refrigerating Storage Co., 171 App. Div. 108, 156 NYS 864; Aylesworth , V. Phoenix Cheese Co., 170 App. Div. 34, 155 NYS 916; Lyon v. Windsor, 159 NYS 162. [a] Illustrations.—(1) Where deceased was employed casually as a carpenter in repairing a building for defendant who was engaged in the macaroni and saloon business, not under contract, but on various odd jobs, he was not in the employ of the company in a business declared hazardous and his widow could not recover for his death while at work. Bargey v. Massaro Macaroni Co., 170 App. Div. 103, 155 NYS 1076 [aff 218 N. Y. 410, 113 NE 407]. (2) Under the workmen's compensation act (Consol. L. c 67) § 2 group 29, defining the business of storage as an extra hazardous occupation, compensation cannot be allowed a fruit buyer for a storage company who was injured when an automobile in which he was going from place to overturned, such employee's duties place inspecting and buying fruit not being in connection with the business of storage, which implies merely the housing and care of property. Sickles V. Ballston Refrigerating Storage Co., 171 App. Div. 108, 156 NYS 864. [b] Discussion of rule.-"The Workmen's Compensation Law is legal enactment of a social conviction that the risks incurred by those who do the manual work of inherently dangerous and 'hazardous' employments should be made a charge upon the cost of the product, without regard of proof of legal fault. It does not represent a belief that, because some part of the employer's business requires some of the employés to do work defined as 'hazardous,' thereby all the employés of that business become entitled to the statutory indemnity for disabling accident. Here again the presence of the indemnity companies as a predominant factor in the provision of insurance under the statute has led to confusion of interests, and has brought in a practice broader than the statute. Protection of the employer against claims by any worker tain of the statutes it is expressly provided that if any employer, besides employing workmen in a hazardous employment, shall also employ workmen in employment not extra hazardous, the act shall apply only to the extra hazardous departments and employments and the workmen employed therein." Under such a statute it is immaterial which is the principal, and which the incidental, business.19 18 reclamation of arid lands; and to work under the Isthmian canal commission, the bureau of mines the forestry service, and the lighthouse service.2 English acts. Under the act of 1906 all employments are included.22 The original act of 1897 applied only to employment on, in, or about a railroad, factory, mine, quarry, or engineering work, and to employment on, in, or about any building which exceeded thirty feet in height, and which was either being constructed or repaired by means of scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechanical power was being used for the purpose of the construction, repair, or demolition thereof.23 Federal act. All civil employees of the United States are within the operation of the act of 1916.20 The prior law, originally enacted in 1908, applied to manufacturing establishments of the United States, arsenals, navy yards, construction of river and harbor or fortification work, or work in the has become a common undertaking | Op. Sol. Dept. Labor 127. (7) Elecof the insurance carrier. The em- tric light and power plant of an ployer insures' himself against any claims by his employés, no matter what their principal or casual duties. Yet this fact should not lead to judicial legislation broadening the statutory purpose." Lyon v. Windsor, 159 NYS 162, 167. executive department at which ice is 18. Wendt V. Industrial Ins. Commn.. 80 Wash. 111, 141 P 311. 19. State v. Business Property Se-light curity Co., 87 Wash. 627, 152 P 334 (holding that one who is engaged in the business of managing business buildings for the owners, including the collection and disbursement of rentals, but who, as a department of that business, employs a maintenance force, including painters, engineers, and a carpenter, is subject to the payment of premiums to the industrial insurance commission, as required by the workmen's compensation act [L. (1911) p 345], since liability thereunder is not determined by the character of the principal business engaged in, but attaches if any department of the business is extra hazardous); Hillestad v. Industrial Ins. Commn., 80 Wash. 426, 142 P 913, AnnCas1916B 789; Wendt v. Industrial Ins. Commn., 80 Wash. 111, 117, 141 P 311. See Mazzarisi v. Ward, 170 App. Div. 868, 156 NYS 964 (where it was held that, where an employee was engaged in driving sheet piling, it was immaterial that, at the moment of injury, he was performing an act more approximately incident to the making of the piling than to the driving). "If the employer conducts any department of his business, whether large or small, as an extra hazardous business within the meaning and defined terms of this act, his workmen would come within the class designated by the act, and be entitled to the protection of the act." Wendt V. Industrial Ins. Commn., supra. 20. Act Sept. 7, 1916 (39 U. S. St. at L. 742 c 458). 21. Act May 30, 1908 (35 U. S. St. at L. 556), amended by acts Febr. 24, 1909 (35 U. S. St. at L. 645), March 4, 1911 (36 U. S. St. at L. 1452), March 11, 1912 (37 U. S. St. at L. 74), July 27. 1912 (37 U. S. St. at L. 239). [b] Places held not to be manu- ment. In re Feltis, Op. Sol. Dept. at ice plant. In re Riggs, Op. Sol. [d] Reclamation service; Nonhaz- [c] Reclamation service; Hazardous employments.-(1) Ditch rider [a] Places held manufacturing required to ride at night and to disestablishments.-(1) Government cover and attend to breaks in a printing office. In re Blaine, Op. | canal. In re Redburn, Op. Sol. Dept. Sol. Dept. Labor 117. (2) Light- Labor 154. (2) Machine attendant house depot, portion of the work consisting of manufacture and repair of materials, etc. In re Wygant. Op. Sol. Dept. Labor 118. (3) Bureau of engraving and printing where bank notes and treasury certificates are made. In re Clark, Op. Sol. Dept. Labor 120. (4) Sawmill at which lumber is sawed and dressed and shingles are made. In re Herron, Op. Sol. Dept. Labor 124. (5) Army quartermaster's depot at which clothing and tents are made (employee entitled to compensation, although not engaged in manufacturing operations). In re Nicholas, Op. Sol. Dept. Labor 125. (6) Blacksmith shop at which tools, etc., are made and repaired. In re Fenton, [e] Isthmian canal commission; Hazardous employments.-(1) Ambulance teamster in the Canal Zone. In re Thompson, Op. Sol. Dept. Labor 165. (2) Hospital orderly in attendance on persons violently insane. In re Small, Op. Sol. Dept. Labor 164. (3) Laborer with a gang at work clearing ground, using a machete in cutting trees. In re Pedez, Op. Sol. Dept. Labor 171. (4) Machine printer operating a roller press. In re Rawlins, Op. Sol. Dept. Labor 170. (5) Plumber and tinner working on roofs and stacks. In re Thennard, Op. Sol. Dept. Labor 167. (6) Policeman in Isthmian Canal Zone. In re Golden, Op. Sol. Dept. Labor 159. (7) Time inspector required to attend men occupied in actual construction work of Isthmian canal. In re Van Sittert, Op. Sol. Dept. Labor 169. (8) Water boy serving water to men employed in actual construction work of Isthmian canal. In re Garsia, Op. Sol. Dept. Labor 166. a [f] Isthmian canal commission; Nonhazardous employments.-(1) Cemetery laborer wheeling stone in a barrow. In re Carney, Op. Sol. Dept. Labor 173. (2) Cook in hotel kitchen. In re Reisinger, Op. Sol. Dept. Labor 161. (3) Hospital attendant performing the manual service usual about a hospital. In re Renwick, Op. Sol. Dept. Labor 172. (4) Janitor rendering services chiefly of a domestic character. In re Jarvis, Op. Sol. Dept. Labor 174. (5) Laborer employed on a delivery wagon. In re Palacios, Op. Sol. Dept. Labor 162. (6) Laborer in a mess hall in the quartermaster's department. In re Traviso, Op. Sol. Dept. Labor 161. (7) Scavenger occupied in collecting garbage and hauling it away in carts. In re Gill, Op. Sol. Dept. Labor 170. (8) Scytheman in a grass cutting gang. In re Migeles, Op. Sol. Dept. Labor 162. (9) Storeroom clerk. In re Inniss, Op. Sol. Dept. Labor 160. (10) Telephone operator. In re Etienne, Op. Sol. Dept. Labor 163. (11) Water boy delivering water to grass cutting gangs. In re Price, Op. Sol. Dept. Labor 163. 22. St. 6 Edw. VII c 58; 20 Halsbury L. Eng. p 153. 23. St. 60 & 61 Vict. c 37. [a] Particular words and phrases of the text have been construed in the following cases: (1) Railway. Pearce v. London, etc., R. Co., [1900] 2 Q. B. 100, 2 WCC 47; Milner v. Great Northern R. Co., [1900] 1 Q. B. 795, 2 WCC 51; Fullick v._ Evans, etc., Co., 3 WCC 164. (2) Factory. Wrigley v. Whittaker, [1902] A. Č. 299, 4 WCC 93 [aff 84 L. T. Rep. N. S. 415, 3 WCC 61]; Handford v. Clarke, [1907] 2 K. B. 409, 9 WCC 87; Smith v. Standard Steam Fishing Co., [1906] 2 K. B. 275, 8 WCC 76; Spacey V Dowlais Gas, etc. Co., [1905] 2 K. B. 879, 8 WCC 29; Dyer v. Swift Cycle Co., [1904] 2 K. B. 36, 6 WCC 74; Barrett v. Kemp, [1904] 1 K. B. 517, 6 WCC 78; Stevens v. General Steam Nav. Co., [1903] 1 K. B. 890, 5 WCC 95; Law V. Graham, [1901] 2 K. B. 327, 3 WCC 131; Carrington v. Bannister, [1901] 1 Q. B. 20, 3 WCC 146; Francis v. Turner, [1900] 1 Q. B. 478, 2 WCC 61; Hall v. Snowden, etc., Co., [1899] 2 Q. B. 136, 1 WCC 73; McNicholas v. Dawson, [1899] 1 Q. B. 773, 1 WCC 80; Doswell v. Cowell, 95 L. T. Rep. N. S. 38, 8 WCC 33; Morgan v. Tydvil Engineering, etc., Co., 1 BWCC 78; Har VII. EMPLOYERS WITHIN INTENT OF ACTS [36] A. Classes of Employers Intended. The question of what employers are within the operation of a compensation act depends on the fair construction of its terms.24 Under an elective act, where the legislative intent to the contrary is not apparent, an employer of a class not subject to the operation of the act may nevertheless elect to come rison v. Oceanic Steam Nav. Co., 9 under it in whole or in part.25 The fact that the abrogation of common-law defenses as to railroad companies by a compensation act includes only shop and office employees does not prevent a railroad company from accepting the act as to all of its employees.2 26 An infant may be liable as an employer to pay London General Omnibus Co., 7 WCC | Where a master plumber, a carpenter, building yard. Spencer V. Livett, [1900] 1 Q. B. 498, 2 WCC 112. (15) and a mason formed a partnership to build and sell houses, but each continued in his regular work aside from the joint adventure, the widow of a servant of the plumber who employed regularly less than five men could not base a claim for compensation on the partnership agency for the plumber of the carpenter, so as to include his employees, bringing the number of employees within the workmen's compensation act (L. [1913] c 138, as amended by L. [1915] c 288), when such servant was killed in the plumber's individual service, and not that of the joint adventure, nor because of such fact was there any estoppel to deny liability. Coady v. Igo, (Conn.) 98 A 328. (2) A farmer is not brought within a statute covering employers of four or more employees in a common employment by reason of the temporary, although regularly recurring, employment of more than four employees for specific occasions. Kelley V. Haylock, 163 Wis. 326, 157 NW 1094. 25. In re Keaney, 217 Mass. 5, 8, 104 NE 438 (where the court said: "The act is a practical measure de Comrs., [1899] 2 Q. B. 132, 1 WCC 47; [b] The act of 1900, extending the act of 1897 to the employment of workmen in agriculture, has been construed in Smith v. Coles, [1905] 2 K. B. 827, 8 WCC 116; Smithers v. Wallis, [1903] 1 K. B. 200, 5 WCC 147; Taylor v. Jones, 1 BWCC 3; Grant v. Ward, 7 WCC 128; Bolt v. Heywood, 5 WCC 151. 24. See statutory provisions; and Bayon v. Beckley, 89 Conn. 154, 93 A 139 (holding that, under workmen's compensation act [Acts (1913) c 138] pt A § 1, abolishing in an action for personal injuries to an employee the defenses of contributory negligence, negligence of fellow servants, and assumption of risk; pt A § 2 providing that § 1 shall not apply to actions for personal injuries sustained by employees of any employer having regularly less than five employees, by casual employees, or by outworkers, nor to actions against any employer who shall have accepted pt B of the act; and pt B providing for the payment of compensation to injured employees in cases where both parties have accepted the act and raised a conclusive presumption of acceptance from failure to give notice of nonacceptance, the phrase in pt A § 2, "any employer who has accepted part B of the act," is not restricted to employers other than those previously mentioned in the same section so as to preclude employers who regularly employ less than five employees from accepting pt B, and such employers are therefore subject to the provisions of pt B if they give no notice of nonacceptance); Udey v. Winfield, (Kan.) 155 P 43, 44 (where the court said: "Assuming, without deciding, that a municipal corporation like the defendant, if employing the requisite number of persons in such plant, should be deemed to be an employer within the meaning of the act in question, it must he held that the testimony failed to show that 15 persons were thus employed. The number could not be completed without including mere clerical employés in the office of the city clerk"); Kelley v. Haylock, 163 Wis. 326, 157 NW 1094. [a] Number of employees.-(1) ple. There appears to be no reason for saying that a farmer may not adopt it if he desires. Any contract of insurance made by him under its terms is valid and enforceable. On the other hand, if he does not desire to make it available for all of his employees, there is no insuperable objection to his undertaking an insurance for a limited portion of them. If there are those, separable from others by classification and definition, whose labor is more exposed or dangerous or whom he may desire to protect for any other reason, there is nothing in the act reasonably interpreted to show why he may not do so"). Compare Bayon v. Beckley, 89 Conn. 154, 93 A 139 (holding that the workmen's compensation act [Acts (1913) c 138] pt B § 4, which provides that every employer not accepting pt B shall be liable for an action in accordance with pt A which abolishes the defenses of contributory negligence, assumption of risk, and negligence of fellow servants, with certain exceptions, among them being employees of employers who regularly employ less than five employees, and that every employee not accepting pt B shall lose the benefits of pt A, does not, because there is less inducement for such employers and employees to accept the act, indicate an intention to exempt employers who regularly employ less than five employees from the provisions of the act, since it will not be presumed that the legislature enacted an unjust provision merely to compel the acceptance of another unjust provision); Shafer v. Parke-Davis, (Mich.) 159 NW 304 (holding that a company which manufactured drugs and maintained a farm for the preparation of serums did not, by a statement in general terms and by the posting of notices in its laboratory, offices, and place of business in a city, bring itself within the compensation act as to its farm laborers); Bayer v. Bayer, (Mich.) 158 NW 109, 110 (where it is said: "A man may be engaged in more than one business, and as to one or more may elect to come under the terms of the act, and as to another or others elect not to be governed by the act"). 26. Minneapolis, etc., R. Co. v. State Industrial Commn., 153 Wis. 552, 141 NW 1119, AnnCas1914D 655 |