or "accidental injury" under the act. Matthiessen & Hegeler Zinc Co.
v. Industrial Board et al. (Ill.)...
Stroke from direct rays of sun, heat stroke or prostration are "accidental
injuries," within the Compensation Act-employee overcome by heat
while working at employer's lunch counter on a hot day and who
died within two hours, suffered an "accidental injury in the course of
his employment." Lane v. Horn & Hardart Baking Co. (Pa.).

$ 374.

INJURY AS PROXIMATE CAUSE OF DEATH.
To entitle dependent to payment of compensation, it must be found affir-
matively that injury arose out of employment. Murphy's Case. In re
Employers' Liability Assur. Corp. (Mass.).

Rules of common law applicable in negligence cases cannot be invoked to
determine when injury arises out of employment. Phil Hollenbach Co.
v. Hollenbach (Ky.)..
Fireman employed in boiler room, overcome in afternoon by excessive heat
and afterwards taken to hospital where he died from heat exhaustion,
died as result of "personal injury sustained by accident"; the word
"accident" as used in various compensation acts not being one of precise
meaning. Walsh v. River Spinning Co. (R. I.)...

Where foreman on much-traveled highway, whose work did not require his un-
interrupted attention, was injured while crossing road to speak to friends,
injury arose out of and in the course of employment. Robinson v. State
(Conn.)

Compensation is not based on theory that employment in which person "is
engaged" is proximate cause of injury. Lane v. Horn & Hardart Bak-
ing Co. (Pa.)

.......

(1). in general.

875

927

270

492

689

779

927

Employer is liable for compensation for injury sustained by workman during
short interval while awaiting arrival of material with which to work-
servant's acts of self-ministration, such as quenching thirst or satisfying
hunger or protecting himself from excessive cold, which are reasonably
necessary for his health and comfort, are incidental to employment and
acts of service within the act, although only indirectly conducive to
purpose of employment. Dzikowska v. Superior Steel Co. et al. (Pa.).... 131
Farm hand found with body crushed between seat and overhanging roof of
shed under which mules were standing, from circumstantial details held
to be an accident in course of employment. Dixon v. Andrews (N. J.).. 105
The word "mill" includes not only the buildings wherein work is done but
everything appurtenant thereto, hence carpenter engaged in manual labor
in proximity to machinery in mill, fequently so engaged is within the
act. Pellerin v. International Cotton Mills-International Cotton Mills
v. Pellerin (U. S.).....

Servant going to washroom to clean up after day's work and injured, re-
ceived injury arising in course of employment. Phil Hollenbach Co. v.
Hollenbach (Ky.)

Workman injured by collision with street car while on way to procure
materials to be used in work was injured by accident arising out of
employment. Coster v. Thompson Hotel Co. (Neb.)...
Where track oiler was injured by automobile belonging to third party while
olling track at street intersection, injury was not incurred at employer's
plant so as to prevent election as to remedies within Compensation Act.
Carlson v. Mock et ux. (Wash.)....
Where carpenter, employed by shipbuilding concern in construction of new
building to constitute part of plant was required to pass near galvanizing
tank while on usual way to toilet, having left work to go to toilet, was
injured by explosion of such tank, he was injured at employer's plant and
in course of employment. Welden V. Skinner & Eddy Corporation
(Wash.)

3

492

526

710

859

754

Cemetery work consists in platting, grading, planting, etc., and includes blast-
ing of concrete foundations formerly supporting water tanks. Rosedale
Cemetery Ass'n v. Industrail Accident Commission of California et al.
(Cal.)
Special night watchman at yard, who jumped from boat where he had been
making visit and drinking, either on to dock, a plank of which broke,
or into open water so that he died from exposure, was not injured
in performance of his duty. King et al. v. State Ins. Fund et al. (N. Y.). 921
(2). Injury received while going to or from work.

Under statute authorizing compensation for injuries while applicant is coming
from his employment "in the ordinary and usual way" no award may be
made if he uses any other than ordinary and usual way-mill hand
walking along railroad track and so reaching highway, was not, in at-
tempting to board a switch train, leaving his employment in usual way,
when he had so left it only twice in 14 years. Foster-Latimer Lumber
Co. v. Industrial Commission of Wisconsin et al. (Wis.)..
Impossible to formulate absolute test for determining whether accident
occurred while workman was acting within scope of employment as no
one test can govern all cases. Piske v. Brooklyn Coperage Co. (La.).......... 264

199

Employee directed to go to another factory to letter a trunk and received
fatal injuries from slipping on snow and ice in street while returning,
was killed by accident arising out of employment. Redner v. H. C.
Faber & Son Co. In re Frankfort General Ins. Co. In re State Industrial
Commission (N. Y.)...
Where shop employee killed immediately after day's work while walking
towards shop exit, his death arose out of employment, though on way out
of shop he was not using board walk intended to be used by employees
going to and from work, there being no enforced rule requiring its use.
Baltimore Car Foundry Co. v. Ruzicka (Md.)..
Quarry employee killed by stone thrown by blast after working hours, while
stopping at commissary to converse, killed within scope of employment
where commissary was maintained by employer. Merlino v. Connecticut
Quarries Co. (Conn.)

The transfer truck driver whose hours were uncertain and had no regular
lunch hour, who loaded his truck and left it, as customary, in street
adjacent to office during noon hour, while awaiting for freight depot to
open, and who in obeying instructions to go get the truck and go to
depot and while crossing street was struck and killed by automobile re-
ceived injury arising out of employment. Burton Auto Transfer Co. et al.
v. Industrial Accident Commission of California et al. (Cal.)..
Where foreman was instructed after completion of building to take charge of
another building in another state, and, having missed the regular stage,
accepted an invitation to travel in private automobile and was killed, de-
pendents were entitled to compensation. Industrial Commission of Colo-
rado et al. v. Etna Life Ins. Co. (Colo.).

If employee has reached employer's premises on his way to work or is still
on premises on his way home when accident occurs, it is an accident
arising out of employment"-where one contracted with county to do
grading work with engine, man and team for certain sum per day, in-
jury to him while moving engine to another part of work was one
arising out of employment." Pace v. Appanoose County (Iowa)....

538

791

781

750

759

884

(2). Disease in general.

Fact that employee injured in course of employment was afflicted with
dormant disease that might some day have produced physical disability
is no reason why employee should not be allowed compensation for in-
jury which added to disease, superinduced physical disability. Behan
v. John B. Honor Co., Limited, et al. (La.)..
Nonliability from disease exists only where death was in fact result of
ailment progressing naturally and disassociated from any injury that
employee may have suffered by accident. Indian Creek Coal & Mining
Co. v. Calvert et al. (Ind.)..

Disease contracted in natural and ordinary course of employment, which is
known to be a usual and customary incident to such occupation, is an
"occupational disease" and not within the act. Industrial Commission of
Ohio v. Roth et al. (Ohio)...

Accidental and unforeseen inhaling by employee, in course of employment, of
specific, volatile poison or gas, resulting in injury or death is not an
Occupational disease." Industrial Commission of Ohio v. Roth et al.
(Ohio)

§ 377.

67

230

829

829

589

DEFENSES TO CLAIMS FOR COMPENSATION.
Under Federal Safety Appliance Act, requiring grabirons on cars, any rung
of ladder is as much a grabiron as the one on top of car. Kansas City,
M. & O. Ry. Co. v. Swift (Tex.)...
Experienced and competent fireman who knew, or should have perceived, the
dangers which he would normally and necessarily encounter in passing
over train assumed the risk. Briggs v. Union Pac. R. Co. (Kan.).... 894

§ 378.

IN GENERAL.
Workman injured in course of performance of labor is entitled to compensa-
tion, though he cannot explain how accident occurred. Stuart v. Kansas
City (Kan.)

...

....

The Act withholding compensation for injury due to willful intention, intox-
ication, etc. does not exclude all other defenses and employer may show
that accident was not one out of and in course of employment. Piske
v. Brooklyn Cooperage Co. (La )..
Where servant was killed by contact with wire, mere fact that it may have
been placed on washbasin by some employee in spirit of horseplay would
not defeat recovery. Phil Hollenbach Co. v. Hollenbach (Ky.)....
Under Employers' Liability Act and Compensation Act, common-law right
of third person to recover for injuries sustained by him as consequence
of harm and injury coming upon another through negligence of de-
fendant is not barred by neglect or refusal of such other to give notices
which are conditions precedent to any right of recovery by him, by a
release, or by refusal to prosecute, since rights of third persons are not
included in terms of act. Erickson v. Buckley (Mass.)..

58

264

492

633

$379.

$380.

MISREPRESENTATIONS BY EMPLOYEE IN OBTAINING EM-
PLOYMENT.

207

629

WILLFUL MISCONDUCT OF EMPLOYEE IN GENERAL.
Experienced laundryman who removed safeguard contrary to statute guilty
of willful misconduct and could not recover. Bay Shore Laundry Co. v.
Industrial Accident Commission of California et al. (Cal.)..
In the expression "willful failure or refusal" as used in act the word "or"
introduces an alternative expression and "willful failure" and "willful
refusal" are equivalent. Haskell & Barker Car. Co. v. Kay (Ind.)...... 466
Railroad engineer cannot recover for injuries sustained by him. brought
about by his negligence in violating rules of company made for Govern-
ment of his conduct. Rask v. Atchison. T. & S. F. Ry. Co. (Kan.).
Where workman stopping at commissary on way home was struck by stone
thrown from blast because of failure to obey rule to seek shelter when
warned by a whistle, failure to obey rule, though perhaps negligence, was
not willful misconduct. Merlino v. Connecticut Quarries Co. (Conn.).... 781
Employee of car manufacturing concern who crosses track between two cars
after being warned not to do so. though negligent, is not guilty of willful
misconduct. Baltimore Car Foundry Co. v. Ruzicka (Md.).
Where, when injured workman reported to representative of employer, neither
he nor representative thought wound required medical attention, but later
condition became worse, so that medical treatment was necessary, injury
arose out of employment. Hall v. J. La Courciere Co. et al. (Conn.).... 769

Night watchman when intoxicated neglecting duty, went to washroom with
intent to sleep, lighted gas heater, etc., and was killed by gas, death
was not reasonably probable incident of employment. John A. Roebling's
Sons Co. et al. v. Industrial Accident Commission et al. (Cal.)........

Rule that terms in any agreement made by employer and employee, or
dependent claimants, concerning compensation, to be binding, are subject
to approval of Board which will not approve settlement not in conformity
with Act. Brabon v. Gladwin Light & Power Co. (Mich.)...
Under Employers' Liability Act and Compensation Act, common-law right
of third person to recover for injuries sustained by him as consequence
of harm and injury coming upon another through negligence of de-
fendant is not barred by neglect or refusal of such other to give notices
which are conditions precedent to any right of recovery by him, by a
release, or by refusal to prosecute, since rights of third persons are not
included in terms of act. Erickson v. Buckley (Mass.).

(B) COMPENSATION.

791

38

302

633

156

25

383. ACCIDENT OR INSURANCE FUNDS, AND CONTRIBUTIONS THERETO.
It is for commission alone to decide whether an employer will deposit security
where it has elected to come under the act. Industrial Commission of
Utah v Daly Mining Co. (Utah)..
While jurisdiction of commission is limited to settlement of disputes arising
under legislation contemplated by statute it may determine question of
breach of warranty of insurance policy arising in proceedings for com-
pensation. Employers' Liability Assur. Corp., Ltd., of London, Eng.,
v. Industrial Accident Commission (Cal.)...
Where plaintiff insured all defendant's employees, both believing that em-
ployees in different work in different county were not covered, policy
stating that work was in one county only, defendant thinking no insur-
ance for different work was required, but commission awarded compensa-
tion to such workman and required plaintiff to pay it, plaintiff could
recover amount from employer-master could not take advantage of policy
clause permitting adjustment of premium for new risk-policy, neverthe-
less, as between plaintiff and defendant, did not cover workman injured-
master having two separate and distinct occupations. both of which re-
quire insurance under act may take out two policies each covering one
occupation and not the other. United States Fidelity & Guaranty Co.
v. Taylor (Md.)

§ 384. AMOUNT AND COMPUTATION OF AWARD.
State courts are obliged by rulings of Supreme Court of the United States
to fix amount of compensation, if compensation be due to beneficiaries of
deceased employee under Federal Employers' Liability Act, at present or
cash value of what employee might reasonably have contributed to sup-
port of beneficiaries during his life expectancy-in determining it accord-
ing to American Experience Table of Mortality, court adopts rule of
adding eight years to the age of the man because of his hazardous occu-
pation. Jones v. Kansas City Southern Ry. Co. (La.)....
Whether schedule of compensation to be paid employees under act is too low,
is question for Legislature and not for court. Zancanelli v. Central Coal
& Coke Co. (Wyo.)..

794

81

715

Under Employers' Liability Act no recovery can be had for pain and suffering
endured by employee, recovery being limited to monetary loss of those
entitled to share therein. Oliver v. Seaboard Air Line Ry. (U. S.).... 741

43

Amount of award is to be based on proportion of disability to normal
ability, regardless of previous partial impairment of normal ability-
one who by accident lost all vision except enough to enable him to
recognize a form without distinguishing its outlines is "blind" within the
act. Industrial Commission of Colorado et al. v. Johnson (Col.).....
Legislature intended, if employment operated all the working days of the
year, and employee's wages were not determinable otherwise, that 300
should be taken as basis from which to calculate compensation and that
if employment operated only part of working days such number should
be taken as a basis; not less than 200 being used in any event. Ruda
v. Industrial Board of Illinois et al. (Ill.).
220
Legislature made a full day's work of eight hours basis of ascertaining
average weekly earnings. Ruda v. Industrial Board of Illinois et al. (Ill.) 220
Workman engaged for specific employment at fixed amount may recover,
based upon earnings of persons in that grade of service, for injury
received while working for less wages in different grade to which he had
been assigned for short time-statute authorizes an allowance for hospital
charges of reasonable amount actually and necessarily incurred. Bundy.
v. Petroleum Products Co. (Kans.).
Employee who lost one eye before entering employment and thereafter
through accidental injury lost sight of remaining eye was entitled to
compensation for "total incapacity for work-presumption arises in favor
of employee who lost one eye before entering employment-additional
compensation could be had for only 50 weeks. In re J. & P. Coats
(R. I.) Inc. et al. (R. I.)......

Where servant lost four fingers, right hand, causing total permanent disability
properly awarded compensation for loss of four fingers for 100 weeks with
provision that if at end of 100 weeks he was totally disabled in his
employment he should be paid compensation during such total disability
up to limit of 150 weeks scheduled for loss of a "hand" which consists
of palm, fingers and thumb. Lovalo v. Michigan Stamping Co. et al.
(Mich.)

The word "loss" as used in act means deprivation, compensation being to
compensate employee for handicap of being without lost member and
not for impairment of earning power. Franko V. William Schollhorn
Co. et al. (Conn.)....

Workman engaged for specific employment at fixed amount may recover, based
upon earnings of persons in that grade of service, for injury received while
working for less wages in different grade to which he had been assigned
for short time-statute authorizes an allowance for hospital charges of
reasonable amount actually and necessarily incurred. Bundy v. Petroleum
Products Co. (Kan.)

(8). Partial disability.

Mere fact that employee is able to perform less exacting work is no ground
for denying award for temporary disability-that he is paid wages for
services of a less exacting and different character rendered after accident,
such wages being less than before injury, does not affect amount of com-
pensation to be awarded in absence of agreement. International Motor
Co. v. Purcell (N. J.).....

Amount of compensation fixed by judgment does not appear to be excessive.
Stuart v. Kansas City (Kan.).....

(10).— Injury to arm, hand, or finger.

(11). Permanent disability-Loss of or injury to eye.
The act does not provide for serious permanent injuries which result in
disfigurement about face or head, or to destruction of usefulness or im-
pairment of a member of any useful function of the body. Boyer v.
Crescent Paper Box Factory, Inc. (La.).....

250

557

289

770

250

528

58

71

(16). Expenses of medical or surgical treatment, and nursing.
(17). Deductions or set-offs, and duty of claimant to reduce loss.
Mere fact that employee is able to perform less exacting work is no ground
for denying award for temporary disability-that he is paid wages for
services of a less exacting and different character rendered after accident,
such wages being less than before injury, does not affect amount of com-
pensation to be awarded in absence of agreement. International Motor
Co. v. Purcell (N. J.)

.....

(20). Commutation of payments and award of gross sum.
Jury is without power to return verdict fixing compensation to be paid in
lump sum-amount of compensation is governed by sections of statute as
cited and award must provide for periodical payments-in case of special
circumstances and when advisable board may commute periodical benefits
to one or more lump sum payments. Roma v. Industrial Commission of
Ohio (Ohio)
Where wages were such that it was impracticable to compute "average
weekly wages" by method first indicated in act, compensation allowed on
alternative statutory method of taking average weekly amount earned
by another employee, in same grade, etc., during 12 months preceding
accident was so nearly accurate that it would be approved. Behan v.
John B. Honor Co., Limited, et al. (La.)..
Court ordered that if defendants defaulted in payment of $4 a week, the
entire amount of compensation should become due and that execution
should then issue therefor, held, not error to enter order. Lombard v.
Uhrich et al. (Kan.)......
Findings did not show an abuse of discretion by court in awarding compen-
sation in lump sum. Gilmore v. Monarch Cement Co. (Kan.)...

528

122

67

53

628

Award of $9 a week was not excessive for death of husband drawing $14
and board, board being worth $4 a week, though employee occasionally
dined elsewhere. Medland v. Houle Bros. et al. (Mich.)..

(2). Deductions.

Deceased's mother by making claim for compensation, clothed employer
with right of action against wrongdoer, where employer failed to pro-
tect its rights, it cannot by petition to board have credited upon award
against it and sum received by mother as result of suit brought under
Survival Act by deceased's administrator. Vereeke v. City of Grand
Rapids (Mich.)

(4). Commutation of payments and award of gross sum.

was

(5). Apportionment of payments.
Total compensation found to be due deceased servant's dependents
properly apportioned equally between widow and each of two surviving
children of servant, one being son of former wife, compensation due
widow's child to be paid her, and that due other child to be paid to
guardian. Holmberg's Case (Mass.)......

.656

917

899

774

One receiving distinct injury to shoulder resulting in total incapacity, and in
same accident losing leg resulting in partial incapacity, was entitled to
compensation for each injury. Olmstead v. Lamphier et al. (Conn.)...
The act providing that compensation for named injuries shall be in "lieu
of all other payments" refers to payments for named injuries and does
not limit award to compensation provided for named injury-compensa-
tion for loss of phalanges of finger was not exclusive of compensation
for total incapacity. Franko v. William Schollhorn Co. et al. (Conn.).. 770
Where employee's finger was injured, resulting in amputation of phalanx on
day of injury, employee was not entitled to award in addition to com-
pensation for loss of phalanx, there being but one injury. Kramer v. Sar-
gent & Co. (Conn.)

Under act, not being party in interest to proceeding by husband during his
life against his employer, widow's subsequent claim or new cause of
action, arising from husband's death, was not beneficially or detrimentally
affected through anything done by him in his proceeding, except by a
possible reduction of her claim for payments made him. Curtis v.
Slater Const. Co. (Mich.)...

777

909