tained while the employee is engaged in the performane of such an act is regarded as compensable.72 Of this character are acts done by the employee in seeking toilet facilities,73 in preparing for the street, in quenching his thirst,75 in heating a lunch,76 in seeking fresh air," in seeking shelter from a storm,78 in protecting himself from cold,79 or even in saving his personal belongings from injury.80 Further, the fact that the employee may contemplate doing something outside the scope of his employment for his own benefit does not pre 72. Larke v. John Hancock Mut. L. Ins. Co., (Conn.) 97 A 320; Brown v. Decatur, 188 Ill. A. 147; Zabriskie v. Erie R. Co., 86 N. J. L. 266, 92 A 385, LRA1916A 315; Carinduff v. Gilmore, 7 BWCC 981; McLauchlan v. Anderson, 4 BWCC 376, [1911] S. C. 529; Earnshaw v. Lancashire, etc., R. Co., 5 WCC 28. vent his acts, up to the time he has embarked on the personal enterprise, from being within the employment.81 [77] f. Disobedience of Orders. Where it appears that the accident occurred while the servant was in the doing of an act which he was expressly forbidden, by his master, to do, recovery cannot be had;82 but this is not true of violation of a rule which has fallen into disuse with the knowledge of the employer, or which is not controlling on the action of the employee.84 83 ting Co., (Conn.) 96 A 368, 369. 77. In re Von Ette, 223 Mass. 56, 111 NE 696, LRA1916D. 641. 78. Moore v. Lehigh Valley R. Co., 169 App. Div. 177, 154 NYS 620. "The duty ancillary or incident to the employment has in some instances been held to include the doing of something primarily for the benefit of the employé, but ulti-tended on tracks into the yard, where mately it is assumed for the master, as the preparation of a noon hour lunch, or the doing of something by the employé which he reasonably believes for the master's interest." Larke v. John Hancock Mut. L. Ins. Co., (Conn.) 97 A 320, 322. [a] Illustrations.—(1) Act of employee engaged in repairing water mains in putting on his rubber boots. Brown v. Decatur, 188 Ill. A. 147. (2) Where an infectious disease is communicated to a workman by his fellow workmen while trying to remove a piece of cinder which had got into his eye while he was at work, and such disease results in blindness, the accident may be said to have happened in the course of his employment so as to entitle him to compensation under Que. Rev. St. (1909) art 7321. Canadian Pac. R. Co. v. Flore, 24 Que. K. B. 55, 24 DomLR 710. 79. Northwestern Iron Co. v. Industrial Commn., 160 Wis. 633, 152 NW 416; Culshaw v. Crow's Nest Pass Coal Co., (B. C.) 7 BWCC 1050. [a] Illustration. In an employer's plant iron briquettes, after passing through the kilns, were placed on small dump cars which ran unatthey were dumped by employees. The claimant was engaged in dumping cars, and as they came out at intervals of about fifteen minutes he had intervals of rest when he was not working. There was evidence that after a car came out he blocked it and sat or lay down on the track to get warm from the heat of the briquettes, the night being cold, and that while still lying, or while he was picking up briquettes after he had warmed himself, he was caught by the next car. It was held that, assuming that his injuries were sustained in this way, although he was negligent, compensation for his injuries could not be denied on the ground that at the time of the accident he was not performing service growing out of or incidental to his employment, it being his duty to his employer, as well as to himself, to protect himself from undue and un73. Zabriskie v. Erie R. Co., 86 N. necessary exposure to the cold. J. L. 266, 92 A 385, LRA1916A 315 Northwestern Iron Co. v. Industrial and note; Berg V. Great Lakes Commn., 160 Wis. 633, 152 NW 416. Dredge, etc., Co., 173 App. Div. 82, 158 80. In re Brightman, 220 Mass. 17, NYS 718; De Filippis v. Falenberg, 107 NE 527, LRA1916A 321 and note. 170 App. Div. 153, 155 NYS 761; Thom- [a] Saving personal effects.-The son v. Flemington Coal Co., 4 BWCC deceased employee was a cook on a 406, [1911] S. C. 823 (holding, how-lighter, where his employment reever, that employee must resort to quired him to live and to be for a large The craft began to place provided); Lawless v. Wigan part of the time. Coal, etc., Co., 1 BWCC 153; Elliott v. sink, and he then made several trips Rex, 6 WCC 27. But see Cogdon v. to and from the deck in an attempt Sunderland Gas Co., 1 BWCC 156 to save some of his clothes and a (where place was not on employer's surveying instrument. With these premises or under his control and compensation was denied). 74. De Mann v. Hydraulic Engineering Co., (Mich.) 159 NW 380; Terlecki v. Strauss, 86 N. J. L. 454, 89 A 1023. 75. Archibald v. Ott, (W. Va.) 87 SE 791; Vennen v. New Dells Lumber Co., 161 Wis. 370, 154 NW 640, LRA 1916 A 273; Martin V. Lovibond, [1914] 2 K. B. 227, 7 BWCC 243. But see Hutchison v. McKinnon, [1916] 1 A. C. 471 [rev [1915] S. C. 867, 8 BWCC 624] (where it was held that act of seaman in drinking poisonous fluid by mistake did not arise out of employment). 76. Mann v. Glastonbury Knitting Co., (Conn.) 96 A 368; Morris v. Lambeth, 8 WCC 1, 22 T. L. R. 22. [a] Reasonableness of act. Claimant was injured while placing a coffee bottle to heat in a hot air pipe and the court said: "The finding does not inform us whether the injury was received at a time when it was customary for the employés to place their bottles for heating; and, in the absence of any finding as to that fact, we cannot say, as a matter of law, that it was unreasonable for a foreman, whose supervisory duties are not necessarily continuous, to place his bottle for heating at 11:30 a. m., at which time the accident occurred." Mann v. Glastonbury Knit [a] Illustration.-Where a driver intended to take his employer's horse for his personal use in going home to dinner, but was injured while watering the horse, the court said: "There was evidence to the effect that it was the decedent's duty to water the horse and that he was on his way to perform that duty at the time of injury. Though he may have had at the same time the purpose to do something else not within the scope of his employment after watering the horse, that fact does not prevent the service actually rendered at the moment from being in the course of his employment. His custody of the horse for the purpose of relieving his thirst was in the performance of the business of his general em| ployer. His service in doing this was not destroyed by his unexecuted intention to abandon his master's business after performing this duty and to take the horse for his own convenience on a journey of his own." In re Pigeon, 216 Mass. 51, 54, 102 NE 932, AnnCas1915A 737. 82. Smith v. Corson, 87 N. J. L. 118. 93 A 112; Reimers v. Proctor Pub. Co., 85 N. J. L. 441, 89 A 931; Hopley v. Pool, 8 BWCC 512; Griggs V. Steamship Gamecock, 6 BWCC 15; Weighill v. South Heaton Coal Co., BWCC 141; Martin v. Fullerton, 1 BWCC 168; In re Jette, 40 Que. Super. 204. Compare Redfield v. Michigan Workmen's Compensation Mut. Ins. Co., 183 Mich. 633, 150 NW 362 (where on a claim for compensation for the death of the operator of a carding machine, the evidence was held sufficient to support findings of the industrial accident board that the sign, "Hands Off," on the carding machine, was intended to prevent disturbance of the operation of the and not machine, a warning against danger, and that other signs machinery while in motion did not in the room warning against cleaning apply to picking off accumulations of cotton on the machine if they were not in a dangerous place, but that that was part of the employee's duty). as [a] Illustrations.—(1) A finding that decedent's fall was caused by the fact that he stepped on the end of a plank lying diagonally across a scaffold, and a finding that decedent had been told by his employer to keep off scaffolds and not to do any climbing, are inconsistent with a further finding that the injury resulting in the death of decedent was due to an accident arising out of and in the course of his employment. Smith v. Corson, 87 N. J. L. 118, 93 A 112. mobile which was in use by his em(2) Where a workman took an autoployers for the purpose of distributing their newspaper, and just before he took it out he had been ordered not to use the automobile, his representative could not recover compenfor his death. Reimers Proctor Pub. Co., 85 N. J. L. 441, 89 A 931. he hastened to the dock, where he 81. In re Pigeon, 216 Mass. 51, 102 V. 83. In re Von Ette, 223 Mass. 56, 111 NE 696, LRA1916D 641; McKee v. Great Northern R. Co., 1 BWCC 165; Douglas v. United Mineral Min. Co., 2 WCC 15. See also Richardson v. Denton Colliery Co., 6 BWCC 629 (where decision went on the ground that injury arose out of employment). 84. Milwaukee v. Industrial Commn, 160 Wis. 238, 151 NW 247. For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number. §§ 77-78] WORKMEN'S COMPENSATION ACTS 85. Plumb v. Cobden Flour Mills Co., [1914] A. C. 62, 7 BWCC 1 [aff 6 BWCC 245, 108 L. T. Rep. N. S. 161]; Herbert v. Fox, [1915] 2 K. B. 81, 8 BWCC 94; Blair v. Chilton, 8 BWCC 324, 113 L. T. Rep. N. S. 514 [aff 7 BWCC 607, 30 T. L. R. 623]; McWilliam v. Great North of Scotland R. Co., 7 BWCC 875, [1914] S. C. 453; Conway v. Pumpherston Oil Co., 4 BWCC 392, [1911] S. C. 660. 88 ployee; Intoxication. 94 91. Great Western Power Co. v. 91 a Under express provisions of The English decisions differentiate between a viothe statutes no compensation may be had where lation of rules or orders which results merely in the injury is due (as the particular act may be the employee doing his work in the wrong way and worded), to the serious and willful misconduct of a violation of rules or orders which results in the the employee,89 or his intentional and willful misconduct,90 or his willful misconduct, or his serious 93 Under such a statworkman doing something outside of the sphere of 85 In the first class of cases the his employment." neglect92 or inexcusable fault.9 ute willful misconduct or serious and willful misemployee may be awarded compensation,86 while in conduct is different from negligence or even gross the latter class of cases compensation is denied.87 It is obvious that it is a matter of extreme diffinegligence. For example, it cannot be predicated culty to apply this distinction to particular facts.8 of a mere disregard by the employee of an order95 [78] D. Serious and Willful Misconduct of Emover the bumpers of Ramlow v. climbing question had any bearing on the railroad employee was injured while Moon Lake Ice Co., (Mich.) 158 NW freight train to which a live engine was attached, without stopping to the treatment of his injury. trainmen were and see where 1027. without knowing whether the train was about to move, he was not, as a matter of law, guilty of intentional and willful misconduct. Gignac v. Studebaker Corp., 186 Mich. 574, 152 NW 1037. (2) For a man to leave the roof of a building by a rope instead of by a ladder, the distance not intentional and willful misconbeing only nineteen or twenty feet, is duct. Clem v. Chalmers Motor Co., 178 Mich. 340, 144 NW 848, LRA1916A 352. (3) Refusal by a foreigner unable to speak or to understand English, and suffering great pain, to submit to a surgical operation until some fifteen or sixteen hours after its necessity was apparent to attending physician is not intentional and willful Jendrus v. Detroit Steel misconduct. 563, LRA1916A 381 and note, AnnCas 1915D 476. (4) Act of deck hand in near edge of Products Co., 178 Mich. 265, 144 NW leaning against post W. R. Rideout Co. v. ful misconduct. barge and going to sleep is not will[b] Willful failure to use guard. Pillsbury, (Cal.) 159 P 435. Where plaintiff was injured by being caught in the revolving cylinders of a machine while standing in or on it and applying compressed air for the purpose of cleaning the cylvided for use when the machine was inders, and covers or hoods were proin operation, but in order to clean the machine the covers had to be removed, although plaintiff could have stood on the ground and applied the air without danger of coming in contact with the revolving cylinders, he was not barred from the right to rethe ground cover compensation on that his injury resulted from his deliberate intent to cause the injury or from his willful failure to guard provided for him as protection V. Mcagainst accident. Messick Entire, (Kan.) 156 P 740. 86. Harding v. Brynddu Colliery Co., [1911] 2 K. B. 747, 4 BWCC 269; Whitehead v. Reader, [1901] 2 K. B. 48, 3 WCC 40; McGuire v. Gabbott, 8 BWCC 555; Corbett v. Pitt, 8 BWCC 466; Blair v. Chilton, 8 BWCC 324, 113 L. T. Rep. N. S. 514 [aff 7 BWCC 607, 30 T. L. R. 623]; McWilliam v. Great North of Scotland R. Co., BWCC 875, [1914] S. C. 453; Jackson v. Denton Colliery Co., 7 BWCC 92, 110 L. T. Rep. N. S. 559; McDiarmid v. Ogilvy, 6 BWCC 878; Watkins v. Guest, 5 BWCC 307; Conway v. Pumpherston Oil Co., 4 BWCC 392, [1911] S. C. 660; Fullerton v. Logue, 38 Sc. L. Rep. 738. 87. Herbert v. Fox, [1916] A. C. 405 [aff [1915] 2 K. B. 81, 8 BWCC 94]; Chilton v. Blair, 7 BWCC 607, 30 T. L. R. 623 [aff 8 BWCC 324, 113 L. T. Rep. N. S. 514]; Price v. Tredegar Iron, etc., Co., 7 BWCC 387, 111 L. T. Rep. N. S. 688; McDiarmid v. Ogilvy, 6 BWCC 878; Davies v. Crown Perfumery Co., 6 BWCC 649; McCabe v. North, 6 BWCC 504; Tomlinson v. Garratt, 6 BWCC 489; Burns v. Summerlee Iron Co., 6 BWCC 320, [1913] S. C. 227; Parker v. Hambrook, 5 BWCC 608; Kerr v. Baird, 4 BWCC 397, [1911] S. C. 701; George v. Glasgow Coal Co., 1 BWCC 239, 45 Sc. L. Rep. 686; Martin v. Fullerton, 1 BWCC 168. 88. Chilton v. Blair, 7 BWCC 607, 30 T. L. R. 623 [aff 8 BWCC 324, 113 L. T. Rep. N. S. 514]. 89. In re Harbroe, 223 Mass. 139, LRA1916D 933; In re 111. NE 709, Von Ette, 223 Mass. 56, 111 NE 696, LRA1916D 641; In re Nickerson, 218 Mass. 158, 105 NE 604, AnnCas1916A 790; Daily v. Watson, 37 Sc. L. Rep. 782; Cervio v. Granby Cons. Min., etc., Co., 15 B. C. 192. [a] Causal connection is essential. Glasgow Coal Co. v. Sneddon, 7 F. (Ct. Sess.) 485; Praties v. Broxburn Oil Co., [1907] S. C. 581; Lynch v. Baird, 41 Sc. L. Rep. 214. [b] Facts held not to show serious and willful misconduct.-Where employee, a night watchman, and police officers exchanged shots in the darkness, each thinking the other robbers, was fatally inand the watchman jured. In re Harbroe, 223 Mass. 139, 111 NE 709, LRA1916D 933. 90. Gignac v. Studebaker Corp., 186 Mich. 574, 152 NW 1037; Jendrus Detroit Steel Products Co., 178 Mich. 265, 144 NW 563, LRA1916A 381, AnnCas1915D 476. V. or of the employer, either 92. Hill v. Granby Cons. Mines, 12 neglect 93. Pepin v. Grand Trunk R. Co., an em elevator [a] Illustration.-When use а V. State 95. Brooklyn Min. Co. Industrial Acc. Commn., 172 Cal. 774, 159 P 162; In re Nickerson, 218 Mass. WCC 32; v. Gigg, 7 158, 160, 105 NE 604, AnnCas1916 A 790; Darbon Peterson v. Garth Co., 24 Reeks v. Kynoch, 4 WCC 14, 18 T. L. R. 34. 94. Cal. Great Western Power Co. Que. K. B. 165. Well v. Pillsbury, 170 Cal. 180, 149 P 35. v. American Ill. Erickson Works, 196 Ill. A. 346. Kan. Messick v. McEntire, 156 P him. 740. Mass. In re Nickerson, 218 Mass. 158, 105 NE 604, AnnCas1916A 790 and note; In re Burns, 218 Mass. 8, 105 NE 601, AnnCas1916A 787 and note. Mich.-Gignac v. Studebaker Corp., V. London United Que. Foucher v. Morache, 46 Que. [a] Facts held not to show.-(1) not an nor [a] Illustrations.-(1) Where a "The fact that the injury was occasioned by the employee's disobedience to an order is not decisive against To have that effect, the disobedience must have been wilful, or, as was said by Lord Loreburn, in Johnson v. Marshall, [1906] A. C. 409, 8 WCC 10, 5 AnnCas 630, 'deliberate, not merely a thoughtless act on the In re Nickerspur of the moment.'" son, supra. [a] lustration.-Where a miner working in a shaft was instructed by his foreman to complete his work there and then to go to another shaft where the foreman was and to work there, and, after completing his work in the first shaft, he came to the surface, and, the day being exceedingly warm, stopped temporarily to rest in the shade of an ore bin, and while so resting was killed by the collapse of the bin, and where the foreman had been informed that he had finished the work in the first shaft and was waiting for another assignment to ing not "willful misconduct," work, the act of the deceased in restwithin workmen's compensation, in was or a rule,96 particularly where the rule had not been The English act of 1906 is somewhat different in wording and provides that, if it is proved that the injury is attributable to the serious and willful misconduct of the workman, any compensation shall be disallowed unless the injury results in death or serious or permanent disability.3 This provision does not remove the necessity that the accident be one arising out of and in the course of employment.* For example, compensation cannot be had when the accident is due entirely to the intoxication of the employee.5 Intoxication. Unintentional intoxication of the employee resulting in an accident and injury is not willful misconduct. Under the English act of 1897, it has been held that drunkenness is serious and willful misconduct. Under a statute requiring compensation except when the injury results solely from the intoxication of the injured employee while on duty, if intoxication of the employee is relied on as a defense, it must be made to appear that the accident which resulted in the injury for which compensation is sought was caused solely and exclusively by the intoxication of the employee. XII. AMOUNT AND PERIOD OF COMPENSATION [§ 79] A. Basis of Determination of Amount-1. In General. With the exception of certain specific provisions for nurse hire and medical and funeral expenses, the amount of compensation, between maximum and minimum limits, is by the statutes made dependent on the earnings of the employee,10 or in some cases of partial disability on the impairment of his earning capacity." The statutes are to be construed liberally for the protection of the employee.12 surance, and safety act (St. [1913] p 283) § 12 subd 3, barring a right to indemnification. Brooklyn Min. Co. v. State Industrial Acc. Commn., 172 Cal. 774, 159 P 162. 96. Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P 35; George v. Glasgow Coal Co., [1909] A. C. 123, 2 BWCC 125 [aff 1 BWCC 239, 45 Sc. L. Rep. 686]; Johnson v. Marshall, [1906] A. C. 409, 8 WCC 10, 5 AnnCas 630; Rumboll v. Nunnery Colliery Co., 1 WCC 28. 97. Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 NW 665, LRA 1916A 22 and note, AnnCas1916A 386; Casey v. Humphries, 6 BWCC 520, 29 T. L. R. 647; Douglas v. United Mineral Min. Co., 2 WCC 15. See British Columbia Sugar Refining Co. V. Granick, 44 Can. S. C. 105, 5 BWCC 703 [aff 15 B. C. 198, 4 BWCC 452 (rev 14 B. C. 251, 2 BWCC 571)] (holding evidence not to show misconduct). 98. Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P 35; Bist v. London, etc., R. Co., [1907] A. C. 209, 9 WCC 19, 8 AnnCas 1; Waddell v. Coltness Iron Co., 6 BWCC 306; Beale v. Fox, 2 BWCC 467; Powell v. Lanarkshire Steel Co., 6 F. (Ct. Sess.) 1039; O'Hara v. Cadzow Coal Co., 5 F. (Ct. Sess.) 439; Guthrie v. Boase Spinning Co., 38 Sc. L. Rep. 483; Callaghan v. Maxwell, 37 Sc. L. Rep. 313; Brooker v. Warren, 9 WCC 26, 23 T. L. R. 201; Forster v. Pierson, 8 WCC 19; Watson v. Butterley Co., 5 WCC 51; Jones v. London, etc., R. Co., 3 WCC 46. But see Dobson v. United Collieries, 8 F. (Ct. Sess.) 241 (where miner was ignorant of rule); United Colleries v. McGhie, 41 Sc. L. Rep. 705 (holding that violation of rule that was due to absent-mindedness | was serious and willful misconduct). [a] Illustration.-A skilled and experienced lineman, killed while working on "hot wires," who disobeyed the employer's known rule against working on such wires without using the rubber gloves provided by it, and which were on hand ready for use, and to whom the foreman a few hours before the accident had sent up such gloves, was guilty of "willful misconduct.' Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P 35. Disfigurement. In the case of awards for permanent disfigurement not resulting in actual incapacity, the statutes recognize the impracticability of measuring compensation in the usual way, and subject to fixed limitations it may be governed by the discretion of the court or the commission.13 The fact that the injury incapacitates the employee long enough to permit him to recover compensation for temporary disability will not prevent him from recovering also for disfigurement, under such an act.14 99. Great Western Power Co. v. 2. Darnley v. Canadian Pac. R. Co., 3. Williams v. Llandudno Coaching, etc., Co., [1915] 2 K. B. 101, 8 BWCC 143; Harding v. Brynddu Colliery Co., [1911] 2 K. B. 747, 4 BWCC 269; Mawdsley v. West Leigh Colliery Co., 5 BWCC 80; Weighill v. South Heaton Coal Co., 4 BWCC 141; Hopwood v. Olive, 3 BWCC 357; Hapelman v. Poole, 2 BWCC 48, 25 T. L. R. 155. [a] Violation of rules will not in itself forfeit the right to compensation. Sanderson v. Wright, 7 BWCC 141, 110 L. T. Rep. N. S. 517. [b] Injuries held serious and pernanent disablement.—(1) Amputation of top joint of middle finger of right hand of machinist. Brewer v. Smith, 6 BWCC 651. (2) Loss of first joints of first and third fingers of right hand. Hopwood v. Olive, 3 BWCC 357. 4. Plumb v. Cobden Flour Mills Co., [1914] A. C. 62, 7 BWCC 1 [aff 6 BWCC 245, 108 L. T. Rep. N. S. 161]; Nash v. Steamship Rangatira, [1914] 3 K. B. 978, 7 BWCC 590; Frith v. Steamship Louisianian, [1912] 2 K. B. 155, 5 BWCC 410; Murphy v. Cooney, 7 BWCC 962; Watkins v. Guest, 5 BWCC 307; Weighill v. South Heaton Coal Co., 4 BWCC 141; Leishman V. Dixon, 3 BWCC 560, [1910] S. C. 498; Pope v. Hill's Plymouth Co., 3 BWCC 339, 102 L. T. Rep. N. S. 632. 5. Murphy v. Cooney, 7 BWCC 962. 6. Nekoosa-Edwards Paper Co. v. "There are many cases where, al- 14 might, under such circumstances, be the proximate cause of an accident resulting in injury or death and yet not have reached that degree specified in this statute, as in case where it produced mere drowsiness." NekoosaEdwards Paper Co. V. Industrial Commn., 154 Wis. 105, 108, 141 NW 1013, LRA1916A 348, AnnCas1915B 995. 7. McGroarty v. Brown, 8 F. (Ct. Sess.) 809; Bradley v. Salt Union, 9 WCC 31; Burrell v. Avis, 1 WCC 129. 8. American Ice Co. v. Fitzhugh, 128 Md. 382, 97 A 999. 9. 10. 11. See infra § 97. See infra § 80. See infra § 81. Necessity of impairment of earning capacity see infra § 85. 12. Cal.-Massachusetts Bonding, etc., Co. v. Pillsbury, 170 Cal. 767, 151 P 419. Mass. In re Meley, 219 Mass.,136, 106 NE 559. Minn. State v. Blue Earth County Dist. Ct., 158 NW 700. N. J.-Nitram Co. v. Essex County Ct., 84 N. J. L. 243, 86 A 435. N. Y.-In re Petrie, 215 N. Y. 335, 109 NE 549. [a] Reason for rule."It is optional with the master and servant whether the employment shall be under section 2 of the act or not. It is a matter of common knowledge that in this regard the person who seeks work is rather at a disadvantage, for unless he is willing to accept employment under section 2 of the act he will have very small opportunity to obtain any. When, therefore, the contract of employment is entered into under section 2 of the act, there is no legal reason why the master who had the option to enter into the same, should be relieved from the plain provisions of the statutory contract, when occasion for their enforcement arises." Nitram Co. v. Essex County Ct., 84 N. J. L. 243, 245, 86 A 425. [b] Absurd interpretation.-"A liberal interpretation should not go to the extent of becoming an absurd interpretation." Mockler v. Hawkes, 173 App. Div. 333, 335, 158 NYS 759. 13. Stevenson V. Illinois Watch Case Co., 186 Ill. A. 418. 14. Watters v. P. E. Kroehler Mfg. Co., 187 Ill. A. 548. [§ 80] 2. Earnings. The earnings of the employee in the particular employment at the time of the injury are taken as the basis of compensation by some of the acts.15 Under such a statute it has been held to be immaterial that the wages of the employee at the time of the injury are unusually high.16 Where there is no weekly rate of wages but the payment is by the hour while employed, the weekly rate may be estimated on a basis of the number of hours in a regular working week." earnings of the employee over a specific period of time, usually a year.18 While the individual statutes of this class vary in terms, their provisions may fairly be summarized as follows: (1) Where there has been a continuous employment for the preceding year, the average weekly earnings are to be arrived at by a simple division of the annual earnings,19 some of the acts providing for an allowance for lost time.20 (2) Where the employee has not been so employed, but has worked for such a length of time that his average daily earnings may be fixed, his yearly earnings are to be taken as three hundred times such average daily earnings, and his average weekly earnings are arrived at by division receives assistance from the mem-excluding overtime, does not apply bers of his family, deduction from when the servant receives a fixed the amount taken as representing his earnings should not be made of payments made to them or on their account in respect of such assistance. Roper v. Hussey-Freke, [1915] 3 K. B. 222, 8 BWCC 604. (4) Where a miner who was paid according to his output employed his son as an assistant in his work, but paid him nothing for his services, although the usual wage for such assistance was 2s 9d per day, in estimating his average weekly earnings nothing fell to be deducted in respect of the gratuitous assistance given by the son. Nelson v. Kerr, 38 Sc. L. Rep. 645. Average earnings. A larger class of statutes than that which determines the amount of compensation simply from the wage of the employee at the time of injury adopts as a standard the average weekly V. 15. See statutory provisions; and State v. Sibley County Dist. Ct., 128 Minn. 486, 151 NW 182; Baur Essex County Ct. C. Pl., 88 N. J. L. 128, 95 A 627; Davidheiser v. Hay Fdy, etc., Works, 87 N. J. L. 688, 94 A 309; Smolenski v. Eastern Coal Dock Co., 87 N. J. L. 26, 93 A 85; Birmingham v. Lehigh, etc., Coal Co., (N. J. Sup.) 95 A 242. [a] Piece worker.-Where a petitioner under the workmen's compensation act (P. L. [1911] p 134) had at the time of the injury worked only part of one day for the employer, was to be paid by the piece, and had earned one dollar and sixty cents up to eleven A. M., it might properly be found that he was earning at the rate of four dollars per day. Schaeffer V. De Grottola, 85 N. J. L. 444, 89 A 921. [b] Contract rate.-"Wages, the legislature said, must be construed to be the money rate at which the services were recompensed. What is to be considered is not the recompense in fact received, but the rate which the contract of hiring fixed, whether that rate was in fact realized for the whole time not." Smolenski v. Eastern Coal Dock Co., 87 N. J. L. 26, 28, 93 A 85. or [c] Board as part of earnings.(1) As to the claim of the prosecutor that the trial judge erred in allowing $9 a week as being fifty per cent. of the weekly earnings of the petitioner, instead of $7.50, a glance at the facts underlying the court's determination is convincing that the allowance is a proper one. The petitioner received in wages $15 per week besides his board. The trial judge found that the value of the board was $3 a week which, together with the weekly wages received by the petitioner, made the petitioner's weekly earnings $18." Baur v. Essex County Ct. C. Pl., 88 N. J. L. 128, 132, 95 A 627. (2) Cost to employer of food and lodging to workman may be added to earnings. Rosenquist v. Bowring, [1908] 2 K. B. 108, 1 BWCC 395. (3) Allowances to a railroad employee for board and lodging while away from home are included in earnings. Midland R. Co. v. Sharpe, [1904] A. C. 349, 6 WCC 119 [aff [1903] 2 K. B. 26, 5 WCC 128]. [d] Deduction for assistant.—(1) Where an employer pays to an employee having general charge of the affairs of the employer's business a fixed sum of money each month from which the employee is required to pay an assistant, if one is employed by him to assist in the work, such sum as may be agreed on between the employee and the assistant, the sum so paid the assistant forms no part of the salary or the compensation of the employee, and in determining the salary of such employee the amount paid the assistant must be deducted from the total amount paid by the employer. State v. Sibley County Dist. Čt., 128 Minn. 486, 151 NW 182. (2) Payments by a miner to his drawer should be deducted from the miner's earnings. McKee v. Stein, 3 BWCC 544, [1910] S. C. 38. (3) Where the workman 16. Huyett v. Pennsylvania R. Co., 86 N. J. L. 683, 92 A 58. Compare James v. Ocean Coal Co., [1904] 2 K. B. 213, 6 WCC 128 (where under the original English act it was held that the maximum established at the time of the accident was not subject to fluctuation). "The only other point suggested is 17. Smolenski "We think that in an employment [a] Average weekly earnings.Workmen's compensation act (P. L. [1911] p 134), providing that the weekly wages shall be taken to be six times the average daily earnings for a working day of ordinary length, wage per day, but only when his wage is fixed by his output. Conners v. Public Service Electric Co., (N. J. Sup.) 97 A 792. [b] In Saskatchewan the statute fixes the limit, and not the measure, of damages. "The principles upon which damages are to be estimated in cases under this Act are the same as in an ordinary action for damages for personal injury. If the damages sustained estimated in accordance with the above stated principle are fixed at $1,800 or any less amount, sec. 15 of the Act has no application. If the damages sustained exceed the amount of $1,800, it will then be necessary to take into consideration 'estimated earnings' during the three years but only in order to determine allowed, but in no case can more than what amount up to $2,000 can be $2,000 be awarded." Kier v. Benell, 7 Sask. L. 78, 18 DomLR 479, 29 West LR 383, 7 West Wkly 15 [rev 6 West Wkly 739]. . [c] In Quebec.-(1) The provision of the Quebec Workmen's Compensation Act art 7322 subd 2, that "the capital of the rents" claimed in cases of total or partial incapacity "shall not exceed two thousand dollars," does not govern the amount of rent where it is claimed from the employer himself, but derives its meaning from art 7329, which gives the injured person or his representatives the option to demand that the capitalized value of the rent shall be paid over to an approved insurance company which will provide an annuity in lieu thereof. Canadian Pac. R. Co. v. MeDonald, [1915] A. C. 1124, 24 Que. K. B. 495, 23 DomLR 1 [aff 49 Can. S. C. 163, 16 Dom LR 830]; Grand Trunk R. Co. v. McDonell, 21 Que. Q. B. 532, 5 DomLR 65. (2) Where a workman who has been injured does not ask for the deposit of the capital sum, he is entitled to a rent the capital of which may exceed two thousand dollars. Canadian Pac. R. Co. v. Flore, 24 Que K. B. 55, 24 Dom LR 710. 19. In re Gillen, 215 Mass. 96, 102 NE 346, LRA1916A 371; De Mann v. Hydraulic Engineering Co., (Mich.) 159 NW 380; Robbins v. Original Gas Engine Co., (Mich.) 157 NW 437; Andrejwski v. Wolverine Coal Co., 182 Mich. 298, 148 NW 684. 20. See In re Gove, 223 Mass. 187, 111 NE 702, 705 (where the court said: "The next contention made by the insurer is that in determining the average weekly wages of the deceased the time during which he elected not to work in order to pursue his studies at the University is not time 'lost' within the provision of part V, § 2, cl. 4. We do not find it necessary to consider this question because there was no evidence on which it could have been found (or at least impliedly found as it was impliedly found both by the Committee of Arbitration and by the Industrial Accident Board) that the deceased worked as an employé during the year next preceding his accident"). of the amount so obtained.21 (3) Where the employee has not worked for a sufficient time to afford data from which to determine his annual earnings, then the wages or earnings of an employee of the same class in the same employment and locality may be taken as a standard.22 (4) Where the preceding methods cannot fairly and reasonably be applied, then the weekly earnings are to be ascertained from such sum as reasonably represents the annual earning capacity of the employee in the employment in which he was working when injured, taking into consideration his previous earnings and the earnings of other employees in the same or the most similar employment in the same locality.23 A maximum award must be reduced where there is no evidence 21. Frankfort Gen. Ins. Co. V. United R. Co., 168 Pillsbury, (Cal.) 159 P 150; Andrejw- NYS 351. ski v. Wolverine Coal Co., 182 Mich. 298, 148 NW 684; Fredenburg v. Empire United R. Co., 168 App. Div. 618, 154 NYS 351. [a] Lost time.—(1) The fact that the employee had lost seven weeks out of the year does not warrant application of this rule where "claimant had worked in the employment, that is, in the capacity and line of work in which he was working at the time of his injury, for many yearsnot only substantially, but wholly." Robbins v. Original Gas Engine Co., (Mich.) 157 NW 437, 439. (2) Where an employee had worked only two hundred and eighty-three days during the preceding year, his average daily earnings were properly found by dividing his total earnings for the year by the number of days he worked rather than by the number of working days in the year. Frankfort Gen. Ins. Co. v. Pillsbury, (Cal.) 159 P 150. that the earnings of the employee are such as to justify it.24 Several employers. Under some of the acts, express provision is made for a case in which the employee works at the same time for several employers, or at different times under concurrent contracts of employment, his earnings being taken as if all the services were performed for the employer in whose service he was injured.25 Substantially the same conclusion has been arrived at by way of construction in the absence of express provision.26 This rule cannot be adopted, however, in the case of successive contracts with several employers." In case of concurrent employments, each employment con App. Div. 618, 154 [b] Union rate of wages may be considered where employee was a member of the union. In re Gove, 223 Mass. 187, 111 NE 702. 23. In re Gillen, 215 Mass. 96, 102 NE 346, LRA1916A 371; Andrejwski v. Wolverine Coal Co., 182 Mich. 298, 148 NW 684; Fredenburg v. Empire United R. Co., 168 App. Div. 618, 154 NYS 551; West Salem v. State Industrial Commn., 162 Wis. 57, 155 SW 929. [a] Illustration.- -Where a deputy sheriff arrested an offender who created a disturbance thereafter so that the village marshal called on decedent to aid him in controlling the offender who, when decedent approached in response to the call which decedent was under a statutory duty to obey, shot him, inflicting a wound from which he died, the correct basis for computation of the compensation to be awarded decedent's widow for his death was not his average weekly wage in his occu[b] In Kansas the yearly earn- pation as plumber, as the award, deceings are taken as fifty-two times the dent not having been employed nor average weekly earnings, under the earning a salary as policeman, the circumstances stated in the text. Mc-employment in which he was killed, Cracken v. Missouri Valley Bridge, during the year preceding his death, etc., Co., 96 Kan. 353, 150 P 832. was to be based on the earnings of one doing policeman's service in his or the neighboring locality. West Salem v. State Industrial Commn., 162 Wis. 57, 155 NW 929. 22. Erickson V. American Well Works, 196 Ill. A. 346; In re Gove, 223 Mass. 187, 111 NE 702; In re Gillen, 215 Mass. 96, 102 NE 346, LRA 1916A 371; Fredenburg v. Empire United R. Co., 168 App. Div. 618, 154 NYS 351; Kopyi v. Jacobs Asbestos Min. Co., 46 Que. Super. 466. [a] Applicationse of rule.-(1) A provision of this character applies to an employee engaged in intermittent employment where there are those in the service of the same employer continuously employed in the same grade and at the same kind of work; it does not apply where there is no substantially continuous employment. In re Gillen, 215 Mass. 96, 102 NE 346, LRA1916A 371. (2) A motorman for an electric railway company had for several years worked on passenger cars, receiving thirty cents an hour. The railway company every six months permitted its employees in the order of their seniority to choose their runs, and such employee about one month before the injury had thus obtained the running of an express car at three dollars and fifty cents per day. There was a reasonable possibility of his continuing on that run, although at the end of six months he might lose it. The company's secretary testified that it was the company's custom to pay an employee who had been in the service of the company as long as the injured employee thirty-five cents an hour on a freight run. It was held that this tended to fix the average daily wage of a motorman in such employment prior to the time claimant took such run as well as the average earnings of other employees, and the commission's award on the basis of three dollars and fifty cents a day was warranted by the evidence. Fredenburg V. Empire 27 tions of like character. Anslow v. a [c] Several employers-Such provision applies to work such as that of a longshoreman where the custom of the employment is for continuous work of a specified kind for different employers. In re Gillen, 215 Mass. 96, 102 NE 346, LRA 1916A 371. 24. Uhlenburgh v. Prince Albert Lumber Co., 7 BWCC 1028; Kennedy v. Grand Trunk Pac. R. Co., (Sask.) 7 BWCC 1046. 25. See statutory provisions; and Steamship Raphael v. Brandy, [1911] A. C. 413, 4 BWCC 307 [aff 4 BWCC 6, 80 L. J. K. B. 217]; Lloyd v. Midland R. Co., [1914] 2 K. B. 53, 7 BWCC 72; Buckley v. London, etc., Docks, 2 BWCC 327 [rev 2 BWCC 491] (holding the provision not applicable in the case of death claims where the employment had been continuous for three years). [a] The English act of 1897 did not contain this provision. See Hathaway v. Argus Printing Co., [1901] 1 K. B. 96, 3 WCC 177. [b] Government as employer.Payments made as a retainer in a naval reserve may be regarded as earnings in a concurrent employment. Steamship Raphael v. Brandy, [1911] A. C. 413, 4 BWCC 307 [aff 4 BWCC 6, 80 L. J. K. B. 217]. 26. Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 P 491; In re Gillen, 215 Mass. 96, 102 NE 346, LRA1916A 371 and note. Contra Hathaway v. Argus Printing Co., [1901] 1 K. B. 96, 3 WCC 177. [a] Illustrations.—(1) Where a longshoreman, injured in the course of his employment by a steamship company, worked for many other employers and earned an average weekly wage which was the average weekly wage earned by other longshoremen in the same class of employment in the same district, the basis for compensation was the average weekly wage, and he was entitled to receive one half of his average weekly earn [b] An employment at which employees do not work substantially the entire year comes within this class. Andrejwski v. Wolverine Coal Co., 182 Mich. 298, 309, 148 NW 684 (where the court said: "In our opinion the legislature by this statute did in fact make provision which applied to all cases of such injuries and deaths occurring in all employments, and that, in making such provision, they included the known and recognized incident of the employment of coal mining and other employments that such employments were not carried on during the entire year. Therefore, in determining the compensation to employees injured in such employments and in arriving at a fair and reasonable basis therefor, the computation must be made under the provisions of the fourth classifi-ings as longshoreman from all cation of this statute, and the amount sources. In re Gillen, 215 Mass. 96, of the average annual earnings of 102 NE 346, LRA1916A 371. (2) Unthe injured employee ascertained as der the workmen's compensation act near as possible. To charge this em- of 1913, which provides as compensaployment with compensation for in- tion for the death of a workman a juries to its employees on the same percentage of the average annual basis as employments which operate earnings of the deceased employee, during substantially 300 days in the and in several of its subsections conyear would be an apparent injustice, templates the payment of awards not as such compensation would be based based on earnings received from the on the theory of impossible earnings employer in whose service the emby the employee in that employment ployee was injured, the earnings of a which operated upon the average a night watchman independently emtrifle over two-thirds of a working ployed by six different firms is the year. This was recognized and pro- amount he received from all of the vided for by the legislature by omit- firms, not the amount he received ting from the fourth classification from the employer in whose service any requirement relative to the aver- he was killed. Western Metal Supage daily wage or salary of an in-ply Co. v. Pillsbury, 172 Cal. 407, 156 jured employee. This construction, | P 491. in principle, appears to be supported 27. Cue v. Port of London Authorby the English cases involving ques- ity, [1914] 3 K. B. 892, 7 BWCC 447. |