TOPICAL INDEX From January to June, 1919, inclusive. I. THE RELATION. (A) CREATION AND EXISTENCE. § 6 (2). Though adjustment and payment of compensation operated to transfer legal (Cal.) § 8 (6). Federal act applies and there is no liability under state act if employee at (C) TERMINATION AND DISCHARGE. 20. Indefinite term. State Act which in actions against employer who has not accepted its terms 27. Disability of servant. Test as to whether employee was engaged in "interstate commerce" at time § 27 (7). Employee in local switching crew injured while setting brake on car being III. MASTER'S LIABILITY FOR INJURIES TO SERVANT. 417 439 89 81 ..559 (A) NATURE AND EXTENT IN GENERAL. 87. Statutory provisions. There can be no recovery against master under federal Act without plaintiff Reed's 296 Street railway engaged in carrying passengers between states is "common 327 ..... 327 Where master had not elected to come under act agreement for compensation 95. Unlawful employment or services. Under statute inhibiting employment in certain places during hours schools (B) TOOLS, MACHINERY, APPLIANCES, AND PLACES FOR WORK. 121 (2). Machinery. Violation of Labor Law, guarding machinery is evidence of negligence, even (E) FELLOW SERVANTS. 354 Railroad's locomotive engineer and its brakeman, while engaged in making (F) RISKS ASSUMED BY SERVANT. 204. Statutory provisions. 204 (1). In general. In actions under federal Employers' Liability Act, the common-law doctrine 216. Incompetency or negligence of fellow servants. 216 (1). In general. At common law, or under later decisions of common-law courts, negligence of 217. Knowledge by servant of defect or danger. 217 (5). Opportunity to acquire knowledge. 217 (29). Incompetency or negligence of fellow servants. (G) CONTRIBUTORY NEGLIGENCE OF SERVANT. § 236 (3). Inadvertence or sleeping while on duty. (H) ACTIONS. 253. Jurisdiction and venue. Under federal Act making jurisdiction of state and federal courts concurrent 258 (8). Violation of statutes or ordinances. .. 296 In common-law action for injuries to servant between ages of 14 and 16;1 .... 662 265 (4). Operation and effect of statutory provisions. 278 (17). Methods of work. Jury may draw on their own information, without proof, touching simple 500 vehicle-jury may properly find that attempt to drag loaded vehicle out of groove without use of jacks was an act of negligence and their finding will not be disturbed. Rickel v. Atchison, T. & S. F. Ry. C. (Kans.) 284 (1). In general. Whether employee, injured in taking locomotive to storage track for night, was engaged in interstate commerce was for jury. Palermo v. Erie R. Co. (N. Y.).... 286 (4). Tools and appliances in general. Action by taxicab driver who claimed to have suffered injuries as result of defective wrench furnished by employer, evidence sufficient to carry case to jury. Ridley v. Portland Taxicab Co. (Ore.)... 286 (7). Nature and kind of appliances, Master cannot as matter of law be said to be exercising ordinary care merely because he uses methods and appliances customarily employed by others in same character of work, nor yet to be without such care solely because he fails to adopt latest and most approved devices known, but question in such cases is for jury. Batson-Milholme Co. v. Frank Faulk (Tex.) 708 346 520 805 286 (8). Customary appliances and mehods of construction. Master cannot as matter of law he said to be exercising ordinary care merely because he uses methods and appliances customarily employed by others In same character of work. nor yet to be without such care solely because he fails to adopt latest and most approved devices known, but question in such cases is for jury. Batson-Milholme Co. v. Faulk (Tex.).... 805 286 (10). Machinery. In action by plaintiff member of construction gang to recover for injury sustained while unloading rails, held, under evidence, that plaintiff at the time of injury was engaged in the very act which he was directed by defendant's foreman to do. Reed v. Dickinson et al (Ia.) 286 (27). Methods of work in general. 287 Jury may draw on their own information, without proof, tuoching simple matters of common knowledge and experience and they do not have to be told that use of jack is necessary to raise wheels of heavily loaded vehicle-jury may properly find that attempt to drag loaded vehicle out of groove without use of jacks was an act of negligence and their finding will not be disturbed. Rickel v. Atchison, T. &. S. F. Ry. C. (Kan.).. 708 289 (29). Operation of railroads in general. In action under Federal Act by plaintiff, member of construction gang, injured while unloading rails. contention of defendant being that injury was due exclusively to plaintiff's negligence, held, that court erred in directing verdict for defendant. Reed v. Dickinson et al (Ia.) 287 294 (6). Vice principals and other representatives of master. Held that the charge adopted was proper test of vice-principalship and a new trial should not have been granted because of alleged error in charge. Gutmann v. Anderson (Minn.)......... IV. LIABILITIES FOR INJURIES TO THIRD PERSONS. (A) ACTS OR OMISSIONS OF SERVANT. 311. To fellow servants. 765 Jury may draw on their own information, without proof, tuoching simple matters of common knowledge and experience and they do not have to be told that use of jack is necessary to raise wheels of heavily loaded vehicle-jury may properly find that attempt to drag loaded vehicle out of groove without use of jacks was an act of negligence and their finding will not be disturbed. Rickel v. Atchison, T. &. S. F. Ry. C. (Kan.).. 708 (A) NATURE AND GROUNDS OF MASTER'S LIABILITY. NATURE AND THEORY OF LIABILITY. 346. Purpose of act is to transfer burdens resulting from industrial accidents from individual to industry and to be finally distributed upon society as whole by compelling it to contribute to those who are lawfully dependent upon deceased. Scott's Case (Me.)......... Compensation Act has substituted another liability in place of common-law liability in tort, but it does not necessarily follow that principles applicable to torts should be applied to this new liability. Anderson v. Miller Scrap Iron Co. et al. (Wig.).. 49 389 Policy of law to place burden of personal Injuries upon business or industry in which employee is engaged. Employers' Liability Assur. Corporation, Limited, of London, England, v. Industrial Accident Commission (Cal.).. 407 Compensation under act is analogous to, and is to take place of damages at common law or under Personal Injuries Act-Compensation Act is not based on theory that it provides a means of support during period of adjustment following death or injury of employee, but on idea or compensation for death or injury arising out of employment and on broad economic theory that such compensation is properly chargable as part of cost of industrial activity. Wangler Boiler & Sheet Metal Works Co. v. Industrial Commission et al. (III.).......... 847. CONTITUTIONALITY OF STAJ UTES. 617 21 49 There is no constitutional objection to statute providing for attorney's fees where employer does not institute proceedings for review of decision of Board and refuses to pay compensation. Friedman Mfg. Co. v. Industrial Commission of Illinois et al. (Ill.).. Act will be construed liberally with view to carrying out its general purpose and not strictly as other statutes in derogation of common law. Scott's Case (Me.) Classification of occupation or employment, made subject to Compensation Act, is not arbitrary and wanting in uniformity so as to make act unconstitutional. Marshall Field & Co. v. Industrial Commission of Illinois et al. (Ill.) Compensation Act as amended is constitutional in its general aspects under both state and federal constitutions. Duart v. Simmons (Mass.)........ 136 Legislature has power to place limitations upon rights of beneficiaries under act. Wangler Boiler & Sheet Metal Works Co. v. Industrial Commission et al. (Ill.).. Plaintiff being resident of the state and not belonging to class of nonresidents to be discriminated against not entitled to attack act on grounds of discrimination. A. F. Estabrook Co. et al. V. Industrial Accident Commission. Klamath S. S. Co. v. Same (Cal.). 105 617 404 567 768 One not an employee in an excepted class in Compensation Act may not assert any grievance that excepted class might have to the validity of act -the act does not deny equal protection of the laws in that it excludes from operation domestic servants, etc and employces of persons employing more than five. Middleton v. Texas Power & Light Co. (U. S.).... 553 Compensation Act is held constitutional only because it imposes a charge, not only upon the individual employer, but upon branch of industry in which he is engaged. Miller & Lux Incorporated v. Industrial Accident Commission of California (Cal.).... The difference in modes by which employee and employer may indicate their election to be bound by act is not objectionable on ground that it discriminates against either-Board is not unlawful body because state auditor is member, only limitation being that of forbidding imposition of duties on auditor that appertain to legislative or judicial departments. Shea v. North-Butte Mining Co. (Mont.) The act providing for election between compensation for death under act or damages in law action, and under section for waiver of right to bring law action by application for compensation is not violative of Const. art. 16, as abrogating right of adult to recover damages for death, an adult being capable of making election-the act in so far as it attempts to limit compensation to minor heirs and enforce a waiver of right to bring law action for death, is invalid where death was by employee's wrongful act, minors having right of action in such case. Garfield Smelting Co. v. Industrial Commission of Utah (Utah) In defining terms "employer" and "employee" in any statute passed in pursuance of Const. Art. 20 authorizing Compensation Law, no dennition therein contained can enlarge scope of constitutional authority. Employers' Liability Assur. Corporation. Limited, of London, England, V. Industrial Accident Commission. (Cal.)... Compensation Law if authorizing state Industrial Commission to require mutual insurers and self-insurers, whose solvency was not doubted to pay into state fund the present value of future installments of compensation under awards for death claims is unconstitutional as discriminating against such insurers and in favor of others, etc. Sperduto v. New York City Interborough Ry. Co. (N. Y.).... Legislature had power to provide that one negligently killing employee subject to act should be liable to dependents instead of rext of kin. Travelers' Ins. Co. v. Padula Co., Inc. (N. Y.)....... ..... 1 348. CONSTRUCTION AND OPERATION OF STATUTES IN GENERAL. Compensation Act being highly remedial and beneficent in purpose is to be liberally construed. Karoly v. Industrial Commission of Colorado et al. (Col.) Compensation Act provides compensation and new remedies for those injured in industrial employments which involve loss, delay and expense and render more certain recovery of compensation when most needed and is to be interpreted with liberality calculated to effectuate such purposePub. Laws 1916, c. 1378, was enacted after passage of Compensation Act and is therefore, in so far as their provisions conflict, if such be the case, controlling. Taglinette v. Sidney Worsted Co. (R. I.).. Compensation Act having been primarily intended for protection and benefit of employees it should not be given such strict and technical construction as to deprive meritorious claimant of compensation. Bates & Rogers Const. Co. et al. v. Allen (Ky..) Supreme Court must assume that words of Statute amending and reenacting Compensation Act were chosen with reference to their established legal 531 407 503 339 98 662 719 meaning. Waldum v. Lake Superior Terminal & Transfer Ry. Co. et al. (Wis.) Provisions of act should be liberally construed. Holt Lumber Co. et al. V. Industrial Commission of Wisconsin et al. (Wis.)..... Provisions of Compensation Act which benefit both master and servant should be liberally construed without regard to technical rul s. Rish v. Iowa Portland Cement Co. (Iowa)..... $349. RETROACTIVE OPERATION OF STATUTES. Amendment as to appeals from order of Industrial Commissioner taken after July 1 applies to injuries received before as well as those received after July 1, when statute became effective. Rish v. Iowa Portland Cement Co. (Ia.) Section relating to reduction of compensation 15 per cent in case of willful failure to obey safety rule has no application to accident occurring before statute was in force. Frint Motorcar Co. v. Industrial Commission of Wisconsin et al. (Wis.).. 671 549 463 463 399 351. RIGHT TO Elect, and EFFECT OF ELECTION IN GENERAL. Under Compensation Act it is elective both with employee and employer whether they shall become subject to its terms employer who chooses to become subscriber is liable to employees of his subcontractor, situated with reference to work on employer's premises and subject to peculiar conditions thereof, having elected to become so liable. Duart v. Simmons (Mass.) 136 244 291 In view of section of act as to employer electing to come under act being relieved of other liability and other sections which state conclusive presumption that mine operator is within act unless he elects otherwise. where injured miner sued, and, when demurrer was sustained to declaration, amended, after cause was barred, by adding allegation that employer had elected not to come within act, he could not recover; the original declaration being not merely defective, for the allegation that employer is not covered by act is essential to the statement of the cause of action at common law. Davis v. St. Paul Coal Co. (Ill.).. Servant, having accepted compensation under Act can have no standing in court to assert employer's further liability to him for exemplary damages on ground of gross and reckless negligence-Act does not require employer to take affirmative in matter of fixing standards of safety, nor does failure to do so work a forfeiture of protection of the Act. Stricklen v. Pearson Const. Co. (Ia.) Supreme Court must assume that Legislature adopted with full understanding of its legal effect, language of Statute, providing that certain sections, shall not apply to employees switching freight cars for railroad company, unless both employer and employee have accepted provisions of act. Waldum v. Lake Superior Terminal & Transfer Ry. Co. et al. (Wis.).... 671 Defendant railway engaged chiefly in switching cars of other companies, held, to have been at time plaintiff was injured while engaged in switching box cars operating a steam railroad as common carrier,' within Compensation Act, denying compensation in such case unless both employer and employee shall have accepted provisions of act in writing. Waldum v. Lake Superior Terminal & Transfer Ry. Co. et al. (Wis.)..... Administrator of deceased's servant's estate cannot maintain action against master for servant's wrongful death where such servant had accepted Compensation Act. Penn's Adm'r. v. Bates & Rogers Const. Co. (Ky.) 731 Employer, not included in any classes enumerated in Compensation Act may, by operating under act, free himself from common-law statutory liability for injuries arising out of employment. Wangler Boiler & Sheet Metal Works Co. v. Industrial Commission et al. (Ill.). That employer had posted notices of election not to operate under act, though such posting was insufficient, held not to estop employer from denying that it had effectually rejected act. Reynolds v. Chicago City Ry. Co. (III.) Remedy under act is exclusive, no cause of action arising at common law or under Employer's Liability Act, except where employer has failed to secure payment of compensation. Nulle et al. v. Hardman, Peck & Co. (N. Y.) Where injured employee under act brought action against married woman and suit was dismissed claimant, by election to sue her, is barred from, subsequently seeking award under act against husband and wife jointly, evidence showing that wife was in fact employer. Crinieri v. Gross et ux. (N. Y.) 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 it made by state to be treated as gratuities. Neumann v. Morse Dry Dock & Repair Co., Inc. (U. S.)..... § 352. 671 617 608 343 349 562 WILLFUL OR INTENTIONAL ACTS OR OMISSIONS OF EM- Act is not bar to common law action for damages by infant, employed in violation of Penal Law, Wolff v. Fulton Bag & Cotton Mills (N. Y.)........ 354 |