that the Federal law was intended to cover only the limited field of the carrier's liability for negligence, and not the whole field of the obligation as it might arise from the occurrence of accidents.

Of course, where a claim is brought under the State law, the application of the Federal law to the case must be pleaded by the company if it wishes to make use of the fact as a defense, and this point is emphasized in a case before the Pennsylvania Compensation Commission in the case of a flagman at a crossing who was killed by an interstate train; the commission ruled that the mere facts as stated were not of themselves sufficient to prove an injury in interstate commerce, but that the burden of proof is on the company to take the case out from under the State law, if it wishes to use this defense. (Holmes case, 1917.)

The Industrial Accident Board of Texas had before it the case of a claim for injuries received by the employee of a company engaged in business described as "general towing," the employer being insured in a stock company in conformity with the provisions of the State compensation law. An award was made under a construction of the law that held that such operations as the towing of vessels entering and leaving the harbor of Port Arthur were within the provisions of the State law. On the rendition of the opinions in the Winfield cases and the Jensen case, the insurer declined to make further payments on the ground that the decisions of the Supreme Court showed the case to be one for Federal jurisdiction and not under State law.

Assuming that as between the towboat company and its employees there was a question of admiralty rights and jurisdiction, the board took the position that nevertheless the insurance company could not plead any defenses under the maritime law, since it had come into the case voluntarily, assuming certain contingent liabilities for a valuable consideration. "It has no admiralty rights whatever-it neither owns nor operates a boat-could not do so under its charter powers." It was held also that when the towboat company voluntarily became a subscriber to the act it waived its admiralty rights, and that the employee working for the company with a knowledge of the facts likewise waived his admiralty rights. Under the law the suit in question was one between the insurance company and the employee or his beneficiaries, and as the company was without admiralty rights, and the employee had waived such rights, the doctrines enounced in the decision by the Supreme Court had no application. In so far as the question of interstate commerce was concerned, the purely optional nature of the Texas statute was said to distinguish it from the laws of New Jersey and New York; and since the employee had by voluntary agreement accepted provisions of law

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by which he did not look to the employer, either directly or indirectly, for damages or compensation in case of injury, but to a third contracting party, the Federal statute was not operative. In view of this position, compensation payments by the insurer were directed to be continued.

ARISING OUT OF AND IN COURSE OF EMPLOYMENT

It is of interest to note that the United States Employees' Compensation Law provides relief for injuries to an employee "sustained while in the performance of his duty," thus adopting a phraseology which differs from that found in the majority of compensation statutes. The absence of judicial construction of these words put upon the commission the duty of adopting a rule for its own guidance, the language being obviously somewhat broader than that generally used. The rule is thus stated:

A personal injury sustained by a civil employee of the United States while on the industrial premises of a navy yard, arsenal, or other place of employment, provided such employee is on such premises for the purpose of going to or returning from his work or performing duties connected with or incidental to his work, and is not on such premises merely for purposes of his own, shall be an injury sustained "while in the performance of his duty" within the meaning of that phrase as used in section 1 of the compensation act of September 7, 1916. This ruling is based upon the responsibility of the United States, as the employer, for the safe and sanitary condition of its premises.

The Pennsylvania statute approximates this position in providing compensation for accidents in the course of employment, omitting the words "arising out of." Under this, compensation was allowed an employee who was shot by a fellow employee who had gone insane, the board holding that "it is sufficient that he suffer his experience while in the course of his employment." (Quam case, 1917.) Similarly the Ohio statute does not contain the words "arising out of," but this was held by the supreme court of the State (Fassig v. State, 116 N. E. 104) not to warrant the extension of the remedy provided by the act to cases other than those in which the injuries resulted from or were connected with the employment; so that it "would not cover any case which had its cause outside of and disconnected with the employment, although the employee may at the time have been actually engaged in doing the work of his employer in the usual way."

The nature of one's employment may furnish an essential basis for determining the liability of the employer for certain forms of accident, as in the case of a night watchman, who was supposed to exercise the authority of a guard or policeman in protecting his employer's

property from injury. The Supreme Court of Illinois in Ohio Building Safety Vault Co. v. Industrial Board (115 N. E. 149) took the view that the murder of a night watchman might properly be found to be connected with the nature of his employment as the proximate cause, the injury being one to which the employee would not have been equally exposed apart from his employment.

Where the injury is the result of horseplay, it is quite commonly held that while the accident occurred in the course of the workman's employment it did not arise out of it. The Michigan Compensation Board was therefore constrained to deny compensation in a case involving the perennially recurring folly of causing internal injuries to a workman by the application of compressed-air hose, the case as usual being one of a claim for fatal injury. In a similar, though nonfatal, case the supreme court of the State disallowed a claim as not arising out of the employment, though it was in evidence that the employees "all had a habit of fooling around at different times." The injured man in this case was attending to his duties, which were in no way connected with the use of the compressed air. (Tarper v. Weston-Mott Co., 166 N. W. 857.) The Appellate Court of Indiana, however, took the view that where the injured man was taking no part in the use of the hose or in the so-called sport therewith, he was within the provisions of the act, so that his dependents might claim compensation. (Bimel Spoke & Auto Co. v. Loper, 117 N. E. 527.)

Rulings were noted in Bulletin 203, pages 237, 238, involving injuries to workmen which would not have resulted but for their practice of smoking. The boards of different States have taken opposite positions on the subject, but the Industrial Commission of Iowa took a different stand from that adopted by the attorney general of the State on the subject, and denied the claim of a workman injured while attempting to light his pipe, on the ground that smoking was not part of his employment, and the employer was not liable for the injury. (Rish case, 1917.)

The situation of an employee whose hours of labor are spent under conditions determined by the employer was passed upon by the Industrial Commission of Wisconsin, the case being that of a lumberman who was injured while in his bunk at the camp by a straw dropping from the bunk above him into his mouth and causing an infection. It appeared that no other sleeping quarters were available than those furnished by the employer, so that the injury was held to arise out of the employment, the employment being regarded as continuous from the time the workman entered the camp until the completion of his contract. (Bebeau case, 1917.)

LIABILITY OF THIRD PARTIES.

The provision found in compensation laws subrogating the employer to the injured workman's rights against a third party causing the injury permits suits for damages in amounts to be determined by a jury, which may, of course, be different from the amounts awarded as compensation under the act. The Nebraska statute permits the employer paying compensation to sue such third party without any limitation upon the amount recoverable in the action; but it was held by a United States Circuit Court of Appeals that where the recovery by the employer was for a larger sum than the statutory obligation under the compensation law, he should turn over to the injured workman any excess remaining after deducting his own payment and the costs of the proceedings, such excess to go as an added benefit to the beneficiaries under the compensation law. (Otis Elevator Co. v. Miller & Paine, 240 Fed. 376.) A point incidentally decided in this case was to the effect that the concurrent negligence of the employer does not bar his right to proceed against a negligent third party. A different aspect of the matter developed in a case before the New York Supreme Court, where a workman was injured, while engaged in his duties, by reason of an assault by strikers. In passing sentence upon the assailants the court put them on parole on condition that they pay periodically specified sums to the injured man. The injured man also claimed benefits under the compensation law, and an award was made by the industrial commission, which held that the employer should make these payments without regard to the sums received by the workman under the sentence of the court. The employer and insurance carrier complained of this holding, and as the law provides that the employer shall be subrogated to the remedies of the employee against the third party, and makes the employer liable only for any difference between the recovery by suit and the statutory award under the compensation law, it was held by the court that the commission had erred in not applying the sums paid by the assailants to the statutory award, leaving the employer liable only for such balance as might remain due. (Dietz v. Solomonwitz, 166 N. Y. Supp. 849.)

Quite similar was the decision in a Connecticut case (Rosenbaum v. Hartford News Co., 103 Atl. 120), in which it was held that where the third party had paid a sum for a release before any suit was brought, the employer was entitled to have this sum deducted from the amount to be paid by him as compensation. Conversely, the Supreme Court of Michigan ruled that the amount recoverable by an employer suing the third party was limited by the amount paid by him as compensation to the injured workman. (Albert A. Albrecht Co. v. Whitehead & Kales Iron Works, 166 N. W. 855.)

PARTIAL DISABILITY.

The enumeration by schedule of certain frequently occurring injuries and the fixing of stated benefits there for does not render purely automatic the administration of the laws in this field. Where the awards prescribed are to be used as a standard for disabilities of a comparable nature, it is obvious that the administrative board must use its discretion in determining the amount due according to these standards. The Indiana law fixes specific amounts for the loss of separate fingers, and also for the loss of a hand, the latter being less than the aggregate that would result from the four fingers and the thumb computed separately. The appellate court of the State, however, pronounced absurd a view that would allow such an aggregate award, since it must be assumed that the loss of the hand at the wrist would be a greater loss than that of the fingers and the thumb, unless under extraordinary and unusual circumstances. An award was therefore directed to be made in such amount as the board might find proper, "not to exceed 200 weeks," following the language of the statute applying to cases not specifically provided for; though as the award for the loss of a hand is but 150 weeks, it is clear that the intention of the court could not be carried out if an award in excess of that term was made. (In re Maranovitch, 117 N. E. 530.) This court had before it a case in which an award had been made for temporary total disability due to injury to one part of the body, and also for permanent partial disability resulting from the same accident. It was held that the two awards were not to run concurrently, but should be consecutive and within the statutory limitations as to the total term and amount of benefit payments. (In re Denton, 117 N. E. 520.) A number of the laws are specific in their statement that where there is a schedule of awards for permanent partial disabilities the payment prescribed shall be in lieu of all other compensation for the injury; but where there was an amputation of one finger, compensable under the schedule as a permanent partial disability, and a crushing and laceration of another finger, causing temporary total disability, the Industrial Accident Commission of Maryland awarded benefits for the two injuries independently.

Instead of making the schedule awards a standard by which other injuries of a comparable nature should be compensated, the law of Nebraska enumerates but a brief list of maimings, and directs that ether partial disabilities shall be compensated on the basis of the wage loss occasioned thereby. Under this law, the loss of a toe. which is specifically provided for in the laws of several States, was held not to entitle the injured workman to compensation for maiming unless it appeared that his earning power was thereby impaired. (Epsten v. Hancock-Epsten Co., 163 N. W. 767.)