(8). Partial disability. Injured workman who only in pain and distress and with friendly help of fellow workmen can earn as much as he did before injury may maintain action against employer for permanent partial incapacity. Raffaghelle v. Russell (Kans.) In computing compensation for one partially disabled, average weekly wages that injured servant has been able to earn since injury is factor, but not wages he has been able to earn since injury. Miller v. S. Fair & Sons et al. (Mich.) (10). Injury to arm, hand, or finger. Work of one engaged in what is ordinarily described as common labor is an "employment" within meaning of act, so that servant employed in shoveling, requiring two hands, at time of injury, was not wholly disabled. but was only partially disabled, where he could do other work with one hand. Miller v. S. Fair & Sons (Mich.).. (11%). Servant, who, with powerful glasses, had vision of one-third with injured right eye, if he closed other eye, so that he could have only one eye and if he used injured eye had but one-third vision was properly awarded compensation for loss of use of right eye. Smith v. F. & B. Const. Co. et al. (N. Y.).. Where employee was near-sighted and had only 50 per cent vision lost use of eye, it was not error to allow compensation for loss of eye, as against claim that she had lost only 50 per cent of vision-wages received by empolyee must be considered her wage-earning capacity with defective vision. Hobertis v. Columbia Shirt Co., Inc., et al, (N. Y.).. (12). Loss of arm, hand, or finger. Where injury necessitated amputation of arm below elbow resulting in employee's permanent loss of use of his arm, he was entitled to compensation for loss of arm rather than loss of hand under that section which includes all cases of permanent loss of members mentioned therein without regard to point of amputation as well as in case of loss from injury not requiring amputation. Pater v. Superior Steel Co. (Pa.)................. ... 293 752 752 189 498 793 (15). Temporary disability. Workman injured in course of employment is not to be denied compensation for such injury and consequent diminished earning capacity merely because injury was not so serious as to totally disable him from labor for first two weeks immediately succeeding accident. Raffaghelle V. Russell (Kansas) 293 Loss of leg-award for period of 133 weeks temporary total incapacity for work was warranted. Moustgaard v. Industrial Commission et al. (Ill.). 600 (16). Expenses of medical or surgical treatment, and nursing. Where injured employee was furnished physician during week following accident, but after apparent recovery and some months after accident required further medical attention because of tumor resulting from injury, employer was not required to reimburse employee for surgical and hospital expenses in treatment of tumor, such expenses not having been contracted during 30 days immediately following injury-provision construed so that 30-day period commences with actual disability of employee and not with accident, so that, if disability is not concurrent with accident, period does not start until medical attention becomes necessary. John A. Shumaker Co. et al. v. Kendrew (Ind.)... .... 122 562 (17). Deductions or set-offs, and duty of claimant to reduce loss. Though stevedore presented claim and accepted compensation under State Compensation Law held that as Commission was without jurisdiction the acceptance of compensation is not bar to libel in admiralty, the payments if made by employer being deductible from recovery and if made by.. state to be treated as gratuities. Neumann v. Morse Dry Dock & Repair Co., Inc. (U. S.).. Allowance for hospital charges and medical attendance of reasonable amount actually incurred by defendant for benefit of workman is proper. Gadberry v. Hutchinson Egg Case Filler Co. (Kan.) Where Fund agreed to pay weekly compensation to servant, who thereafter recovered from physician for malpractice, on petition of Fund, it is not entitled to credit for sum received by servant from physician in reduction of amount due from Fund to claimant under act. Smith v. Battjes Fuel & Building Material Co. et al. (Mich.).. 333 Where condition of total disability was entirely due to original injury, State Fund not entitled to be relieved from weekly payment it had agreed to make during disability on ground that present disability was caused by unskillful treatment or refusal to have operation. Smith v. Batt's Fuel & Building Material Co et al. (Mich.). (20). Commutation of payments and award of gross sum. Injured servant, totally disabled permanently, and awarded compensation of $8 a week for his life, was entitled to lump sum settlement if facts 473 333 warranted relief. Karoly v. Industrial Commission of Colorado et al. Error assigned on abuse of discretion in award of lump sum judgment instead Partially dependent mother of deceased painter, whose average weekly wage (2). Deductions. In deciding whether parent is wholly or partially dependent on wages of Injured employee's compensation under statute paid pursuant to voluntary 98 293 657 700 151 224 240 (4). Commutation of payments and award of gross sum. Agreement of employer, as a condition of being allowed to carry its own in- 512 Under act workman so injured as to be entitled to compensation may, if dis- .... 388. PERSONS ENTITLED TO COMPENSATION FOR DEATH OF EM- In proceedings by deserted wife and by mistress of deceased, fact that wife mistress and deceased were wholly dependent upon him did not necessitate disposal of case under act, as though there were no dependents, on theory that condition was one not contemplated by statute-deserted wife, who had subsequent to her desertion been guilty of adultery, is not a "dependent" illegitimate children of deceased employee living with decedent and their mother are "dependents" of decedent within the act as part of his family; a "family" being a collective body of persons who live in one house under a head or manager who has legal or moral duty to support. Scott's Case (Me.).... To entitle parents of deceased to compensation for his death sufficient if he contributed to their support within four years prior to time of injury and they need not have been dependent on him. Humphrey et al. v. Industrial Commission of Illinois et al. (Ill.).. To entitle parents of deceased employee who died during minority as result of injury caused by employment to compensation it is not necessary that contribution of minor was in excess of expenses or that contrabution to parents had any regularity-it is duty of parents to support minor children until they reach age of majority and minor child "contributes to support of its parents" within the act when it contributes substantial sum to support of family. etc. Metal Stamping Corporation v. Industrial Commission et al. (III.). 49 102 258 250 282 643 527 Wife can claim support if husband was under legal obligations to support her, although they were not living together at the time and wife was not dependent on him for support. Smith-Lohr Coal Mining Co. v. Industrial Commission et al. (III.)... Dependency of 13 year old daughter of deceased, not presumed to be conclusively dependent, is to be determined as question of fact upon consideration of father's legal obligation under divorce decree ordering payment for her support, or moral obligation, and whether order would be discharged or enforced. Schwartz v. Gerding & Aumann Bros. et al (Ind.) Daughter of deceased servant, over 18, married and living with her blind husband, she herself being totally blind and therefore physically incapacitated from earning, was entitled to equal share in death benefit with surviving widow. Gavaghan's Case. In re Employers' Liability Assur. Corporation, Limited (Mass.)... Father, partially dependent upon wages of son, could participate in compensation allowed, though son left totally dependent widow, father being entitled to part of award proportionate to his part of total contribution to support father and wife made by son. Penn et al. v. Penn. (Ky.).... 634 Award to widow does not preclude award also to minor children. Wolford v. Geisel Moving & Storage Co. (Pa.) 798 "Dependency" means reliance for support upon workman's earnings at time of injury resulting in death and not at any time thereafter. Newton v. Rhode Island Co. (R. I.).... Word "widow" since it is not defined by act is to be given its ordinary meaning, which is "a married woman whose husband is dead"-although claimant and deceased had lived together for about six years under belief that they were lawfully married, where there was no compliance with statute further than to make out two of three affidavits for license, claimant was not "widow" of deceased within act-though claimant believed she was lawfully married she was not a "dependent." Meton v. State Industrial Insurance Department (Wash.).. Where deceased workman leaves widow and minor children award should be made in favor of children to begin after award to widow ceases and to continue until each child reaches 16 years of age. Irvin v. William M. Frost & Co. et al. (Pa.).. Persons in enumerated classes may be wholly or partially dependent and come within contemplation of provisions, if dependency existed at time of injury one claimed to be dependent must show that contributions were relied upon for living-"support" as applied to "dependency" is broader than food, clothing, etc., and includes all means of living-condition of health of claimant and need for medical attention, etc., are proper subjects for consideration in determining question of dependency. Benjamin F. Shaw Co. v. Palmatory et al. (Del.).. Beneficiaries as well as apportionment must be determined by Compensation Act and not statutes governing recovery of damages for wrongful death. Vaughan et al. v. Southern Surety Ins. Co. (Tex.).. § 389. SUBROGATION TO RIGHTS OF INJURED EMPLOYEE. Under section providing for adjustment of compensation where employee is injured by act of third person, the employee, after employer has indemnified himself by suing third person, is entitled to entire balance of judgment recovered if more than sufficient for such indemnification-employer may sue for entire damages either in his own name or that of his employee, or may continue any suit begun in name of such employee after liability is fixed-court may by order distribute proceeds as between employee and employer. Gones v. Fisher (II.)... Compensation Act permits assignment of injured person's right of action against tort-feasor not previously sanctioned by law and provides that making by injured employee of lawful claim under act against employer and latter's insurer shall operate as transfer of legal title to his claim for damages against tort-feasor to employer or latter's insurer-use of word "subrogated" did not render right of action against tort-feasor 541 526 424 386 596 acquired by employer's insurer, which paid claim, an equitable cause of Decision of higher state court denying relief under New Jersey Act for § 392. 574 339 403 -AUDIT OF CLAIMS.INCURRED OR PAID BY BOARDS OR COM- (8). Where assignment or change of interest without endorsement was prohibited If award to widow ceases before decedent's children reach 16 years of age, In view of fact that no provision is made that remarriage of widow shall 192 788 527 § 3932. Where workman directed by master to one hospital, went to another and (C) PROCEEDINGS. 420 377 414 Procedure for recovery of compensation under act not applicable to cases 895. WHAT LAW GOVERNS. V. Test of whether or not locomotive engineer was engaged in interstate com- 645 775 629 Test whether railroad employee is engaged in interstate commerce is whether TOPICAL INDEX From January to June, 1919, inclusive. 1. THE RELATION. (A) CREATION AND EXISTENCE. § 6 (2). Though adjustment and payment of compensation operated to transfer legal title to employer, or surety, employee still retained equitable interest and was real party in interest. Bassot et al. v. United Railroads of San Francisco (Cal.) § 8 (6). Federal act applies and there is no liability under state act if employee at time of injury was engaged in interstate commerce. Wangerow v. Industrial Board et al. (III.)..... (C) TERMINATION AND DISCHARGE. 20. Indefinite term. State Act which in actions against employer who has not accepted its terms provides a different measure of compensation from that of maritime law, does not apply to seaman injured while employed on vessel on navigable waters of the United States. Barrett v. Macomber & Nickerson Co. (U. S.).. 27. Disability of servant. 417 439 89 Test as to whether employee was engaged in "Interstate commerce" at time of injury is whether performance of act in which he was engaged directly and immediately tended to facilitate movement of interstate commerce, or, conversely, whether failure to perform act directly and immediately interfered with or hindered movement of such commerce. Morrison v. Chicago, M. & St. P. Ry. Co.. (Wash.).... 81 § 27 (7). Employee in local switching crew injured while setting brake on car being switched between sidings, car having come from Pennsylvania consigned to company in New Jersey not engaged in interstate commerce. Delaware, L. & W. R. Co. v. Peck (U. S.). .559 III. MASTER'S LIABILITY FOR INJURIES TO SERVANT. (A) NATURE AND EXTENT IN GENERAL. $87. Statutory provisions. There can be no recovery against master under federal Act without plaintiff showing negligence of carrier's officers, agents or employees. Reed's Adm'x v. Illinois Cent. R. Co. (Ky.) Street railway engaged in carrying passengers between states is "common carrier by railroad" within Federal Act. Nelson v. Ironwood & B. Ry. Light Co. (Mich.).. Where master had not elected to come under act agreement for compensation was not binding upon servant. Nelson v. Ironwood & B. Ry. & Light Co. (Mich.) 327 § 88 (7). Commencement, suspension, or termination of relation. Servant employed in cleaning fires and coaling locomotives injured when riding to work on master's engine, such being method of reaching work provided by master, was injured while relation of master and servant existed. Lindstrom v. New York Cent. R. Co. (N. Y.)... 514 95. Unlawful employment or services. Employment of minor between 14 and 16 years of age will not be held to be illegal on account of fact that child's mother signed age and employment certificate issued by school committee under Statute and falsely stated that she had control of child, when child was in fact under control of father. Taglinette v. Sydney Worsted Co. (R. I.).... 662 Under statute inhibiting employment in certain places during hours schools are in session, child of 15, not supplied with age and schooling certificate his employment for all hours of day, being an entirety, is illegal even after school hours-employment is not saved from illegality by fact he is attending night school. Maryland Casualty Co. v. Industrial Accident Commission of California et al. (Cal.) 563 (B) TOOLS, MACHINERY, APPLIANCES, AND PLACES FOR WORK. §§ 101, 102 (10). Care required dependent on knowledge and (X perience of servant. Absence of light on locomotive moving in yard is not negligence as to employee who knew his position and was injured after jumping from it with light, creating absence of light. Palermo v. Erie R. Co. (N. Y.)...... 346 |