and keep the yards free from papers and other refuse. Every morning a delivery of several thousand pounds of ice was made at the yards, whereupon the employee, with others, would load a push car and from it take the ice and put in the cars as needed. On the day of the injury he had finished cleaning a car and had begun cleaning the yard when he heard a call that the ice had come. He went to the push car to aid in putting it on the track. While waiting by the belt line track for other employees to come, he turned to look at an engine approaching on the main track and was struck by a switch engine running rapidly on the belt line track. The cars which he would in due course have iced were interstate cars. It was held that at the time of the injury he was not engaged in interstate commerce or in work so closely connected therewith as to be practically a part of it. The case was said to be governed by the same rule as the Harrington Case. This is the latest federal decision we have found, and, considering the analogy of the case before us, and the dissimilarity of the Winfield Case, it is held that the plaintiff was not within the federal Employers' Liability Act.

[2, 3] The most natural thing for a station agent to do is to make a fire in the stove when the weather is cold, and, notwithstanding the dangers and prohibitions, everybody knows that folks will start fires with coal oil. It appeared in this case that the agents generally used signal oil or kerosene in starting fires in that locality. The plaintiff testified: "It was the custom of the agents to do that. All that I have ever known. I have known a majority of them along that special division."

The very fact that the defendant had a rule against using kerosene to start fires indicates a knowledge that such warning was needed, which is another way of saying that it indicated consciousness of the agents' custom to use coal oil for kindling.

The trial court correctly instructed that the injury occurred in the course of the employment and the jury were warranted in finding that it arose out of such employment.

In Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913, an employee was injured by having mortar playfully or wantonly thrown into his eye by a fellow workman, and this was held to be an injury arising out of and in the course of his employment. See, also, White v. Stockyards Co., 177 Pac. 522.

The Corpus Juris treatise on the Workmen's Compensation Act thus states the rule:

"A peril which arises from the negligent or reckless manner in which an employee does the work which he is employed to do may, in many cases, be held to be a risk incidental to the employment; and the same is true where he performs an authorized act in a forbidden manner, a distinction being taken in this regard from cases in which the act is altogether outside of, and unconnected with, the employment." Page 75.

In support of the text that a new and added peril to which the employee has needlessly exposed himself is not within the act, the author cites the case of a messenger boy jumping on a moving street car; a miner riding in an empty tub contrary to orders; a workman walking across a railway contrary to orders instead of crossing by bridge.

The annotated case of Lancashire & Yorkshire Ry. v. Highly, 15 N. C. C. A. 210, decided by Lords Finlay, Haldane, Dunedin, Atkinson, and Sumner in March, 1917, involved the question whether the death of a workman caused by attempting to go between the trucks of a "goods train" arose out of his employment. It was held that it did not so arise. The county court judge held the employer not liable. The court of appeal reversed this ruling. When the case reached the court of last resort and was argued, “their lordship took time to consider their judgment.”

Viscount Haldane in his opinion said that for the injury to be one

arising out of and in the course of the employment it must be shown that two conditions had been satisfied.

"The injury by accident must have occurred as something which would not have occurred but for the circumstance of the employment and as having been something due to it-the employment- and it must have occurred during its currency." Page 244.

Lord Summer said one test:

"Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment."

The case was said to be one of an

"accident arising not out of, but outside of the employment, since at the time of his death the workman was in no sense doing that which was part of or fell within his employment, whether he was or was not acting with care therein, but was for his own purpose, namely, the convenience of the moment, thoughtlessly pursuing a course which fell outside of his employment." Page 293.

It is quite clear from all the five opinions that the case was not regarded or treated as one of merely negligent manner of doing some act clearly within the line of employment, but as one involving a voluntary and needless choice of a dangerous route of travel when safe ones were available, thereby momentarily taking the workman outside of the line of his employment.

Here the agent was rightfully and properly attempting to start a fire, but careslessly used the wrong kind of kindling. This was not a conscious, voluntary choice between a safe and a dangerous way to do his duty, but a caresless use of a combustible, which caresless use endangered his life and seriously injured him, but just such a careless use as was frequently made of kerosene by the station agents of the defendant and such a use as might be likely to result from the employment.

While the facts place the case before us very near the border line, there is sufficient in the record to justify the conclusions reached by the trial court.

The judgment is affirmed.

All the Justices concurring.

SUPREME COURT OF KANSAS.

UNRINE
ข.

SALINA NORTHERN R. CO. ET AL. (No. 21915.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT—OPERATION OF RAILROADS UNDER THE ACTPRESUMPTION.

Receivers of a railroad company are presumed to be operating under the Workmen's Compensation Act until they elect not to come within its provisions, although before their appointment the corporation had made such an election.

(For other cases, see Master and Servant, Dec. Dig. § 361.)

* Decision rendered, Feb. 8, 1919. 178 Pac. Rep. 614. Syllabus by the Court.

Vol. III-Comp. 31.

(Additional Syllabus by Editorial Staff.)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-RECEIVERS OF RAILROADS-"EMPLOYER."

Receivers of railroad companies are "employers" within Workmen's Compensation Act, Laws 1917, c. 226, § 2, subd. h.

(For other cases, see Master and Servant, Dec. Dig. § 361.)

(For other definitions, see Words and Phrases, First and Second Series, Employer.)

Appeal from District Court, Saline County.

Action by Matt Unrine against the Salina Northern Railroad Company and others. Demurrer to one defense of answer sustained, and defendants appeal. Affirmed.

David Ritchie, of Salina, for appellants.

Arthur F. McCarthy, of Salina, for appellee.

BURCH, J. The action was one to recover compensation for personal injuries. A demurrer was sustained to one defense of the answer of the receivers, and they appeal.

In July, 1917, the defendants Brent and Goebel were appointed receivers for the Salina Northern Railroad Company. The injury complained of occurred on September 25, 1917. The answer of the receivers was that in January, 1916, the railroad company had elected not to accept the provisions of the Workmen's Compensation Act.

[1, 2] The demurrer was properly sustained. When the receivers took charge of the property and affairs of the railroad company, they did so as appointees and agents of the court instituting the receivership, and not as appointees and agents of the corporation. Contracts between the corporation and employees who were retained in service by the receivers were terminated, and such employees became employees of the receivers. Chilletti v. Railway Co., 102 Kan. 297, 171 Pac. 14, L. R. A. 1918C, 1147. The receivers were an "employer," within the provisions of the Workmen's Compensation Act (Laws 1917, ch. 226, § 2, subdiv. h). As such, they formulated their own business policies. Until they elect not to come within the provisions of the act, they are presumed to be operating under it, without regard to the previous attitude and conduct of the corporation with respect to the same subject.

The judgment of the district court is affirmed.

All the Justices concurring.

COURT OF APPEALS OF KENTUCKY.

PENN ET AL.

ບ. PENN.*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -PARTIAL DEPENDENT.

Under Workmen's Compensation Act, a father, partially dependent upon wages of deceased son, could participate in compensation allowed,

*Decision rendered, Feb. 11, 1919. 209 S. W. Rep. 53.

though son left totally dependent widow; father being entitled to part of award proportionate to his part of total contribution to support of father and wife made by son.

(For other cases, see Master and Servant, Dec. Dig. § 388.)

Appeal from Circuit Court, Mason County.

Proceeding under the Workmen's Compensation Act by Nellie Penn and another for compensation for the death of Harvey Penn, her husband, employed by the Bates & Rogers Construction Company. Compensation was awarded, the Board of Compensation deciding that James Penn, decedent's partially dependent father, was not entitled to participate with the totally dependent widow, which award was reversed by the circuit court, and the widow and others appeal. Affirmed.

Charles H. Morris, Atty. Gen. D. M. Howerton, Asst. Atty. Gen., Stanley Reed, of Maysville, and Chambers Baird, of Ripley, Ohio, for appellants.

A. D. Cole and H. W. Cole, both of Maysville, for appellee.

SAMPSON, J. A young man named Harvey Penn, employed by the Bates & Rogers Construction Company in the work of building a lock and dam on the Ohio river, was accidentally killed in the course of his employment. For some years previous only he and his father lived together, and his father was partly dependent on the son for support. His mother was dead, and he had no other close relatives About one month before the accident to and death of young Penn, he married. The Bates & Rogers Construction Company was operating under the Workmen's Compensation Act (Ky. St. Supp. 1918, §§ 4880-4987) and carried insurance. Both the construction company and the insurance company recognize liability for compensation to dependents of decedent, Penn; but the two dependents the widow, Nellie Penn, and the father, James Pennare litigating the question of what, if any, apportionment of the amount allowed under the act shall be made between the two. The widow, by the terms of the statute, is presumed to be wholly dependent upon the earnings of the husband, and this is not contested. The father, who resided in the house with the deceased, is admitted to be partially dependent. The widow aserts that, as she is the only totally dependent person on the deceased employee, she is entitled to full compensation to the exclusion of the father, who was only partly dependent on his son. She says that the whole excludes the idea of a division or apportionment; that the wholly dependent, if any there be, takes the whole compensation; that one only partly dependent is not entitled to participate in the compensation allowed, so long as there is one of the totally dependent class.

Can a person partly dependent upon the wages of a deceased employee participate in the compensation allowed under this act, when there is a totally dependent claimant? That is the question for determination in this case. The lower court held that the partially dependent father was entitled to participate with the totally dependant wife in the award in the proportion that his dependency bore to total dependency. The Board of Compensation held to the contrary. The widow prosecutes this appeal.

The extent of the liability of the employer to dependents of a deceased employee is fixed, according to the class of dependents to which the claimant belongs, by section 4893 Kentucky Statutes, which reads: "(1) If there are no dependents, as herein defined, there shall be paid in addition to the burial expenses and medical expenses, if any otherwise provided for herein, the further sum of $100, payment to be made to the personal representative of the deceased employee.

"(2) If there are one or more wholly dependent persons, 65% of the

average weekly earnings of the deceased employee, but not to exceed $12 nor less than $5 per week shall be payable, all such payments to be made for the period between the date of death and 335 weeks after the date of accident to the employee, or until the intervening termination of dependency, but in no case to exceed the maximum sum of $4,000.

"(3) If there are partly dependent persons, the payments shall be such part of what would be payable for total dependency as the partial dependency existing at the time of the accident to the employee may be proportionate to total dependency, all such payments to be made for the period between the date of death and 335 weeks after the date of the accident to the deceased employee, or until the intervening termination of dependency, but in no case to exceed in the aggregate of compensation on account of such death the maximum sum of $4,000."

Subsections 2 and 3 are the ones with which we are concerned. Simplified, subsection 2 provides that, in case where there are one or more wholly dependent persons, the company shall be liable for 65% of the average weekly earnings of the deceased employee; and subsection 3 provides that, if there be no totally dependent persons, the amount recoverable shall be only such part of what would be payable for total dependency as the partial dependency, existing at the time of the accident to the employee, may be proportionate to total dependency. This section fixes the amount for which the insurer is liable, and does not designate the dependents who are to receive the same, for it will be noted that the section does not say to whom the compensation shall be paid as between dependents, but only that 65% of the average weekly wage of the deceased employee "shall be payable"; that is, the company shall be liable for said amount when fixed by the board.

It has often been held that, where there are two or more wholly dependent persons, the allowance shall be equally distributed between them. Rossi v. Standard Oil Co., 2 Cal. I. A. C. Dec. 307; Moran v. Rodgers & Hagerty, Inc., 180 App. Div. 821, 168 N. Y. Supp. 410; Buhse v. Whitehead & Kales Iron Works, 194 Mich. 413, 160 N. W. 557. So, also, has it been decided that where there are several partially dependent persons, but no totally dependent, each shall share in the fund awarded in the proportion that his partial dependency bears to total dependency and the distributable fund, but, no matter how large the number of dependents, the total sum of their dependency cannot exceed 65% of the average weekly earnings of the deceased employee. Anderson v. American Straw Board Co., 1 Conn. Comp. Dec. 11 (affirmed by Superior Court); State ex rel. Ernest Fleckenstein Brewing Co. v District Court, Rice County. 134 Minn. 324, 159 N. W. 755; In re Pagnoni, 230 Mass. 9, 118 N. E. 948; Dosker's Compensation Law (1917 Ed.) §§ 164-181.

The act contains a provision (section 4909, Kentucky Statutes) for the payment of the entire award to one dependent for the benefit of all dependents entitled thereto, if the board so directs. This is intended to cover cases where a parent and a child or children are dependents. Generally the board will direct that all payments be made to the parent, for the use and benefit of the parent and the several dependent children in accordance to the dependency of each and their respective claims on the deceased for support. However, it has been held by the New Jersey court that where the deceased employee left a wife and several minor children all totally dependent upon him for support, and one of the dependent children was by a former wife, the whole amount should not be paid to the widow, but it should be divided, and paid, one part to the widow for her use and that of her own children, and the balance to the guardian of the stepchild, according to the dependency of each; it being made to appear that the best interest of the stepchild would thus be served.

Why, then, should not the partially dependent share proportionately wth the totally dependent in the ratio of his dependency to total dependency? We think he should. If this is not allowed, the legislative pur