$379.

$380.

MISREPRESENTATIONS
PLOYMENT.

BY EMPLOYEE IN OBTAINING EM-

....

207

466

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 L indry 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.)
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.).

383.

(B) COMPENSATION.

791

38

302

633

156

25

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 beneficiarles 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.)..

250

557

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.)
..... 289
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 employée 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.)......

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.)

(18).

.....

Submission to surgical operation.

(19). Excessive award.

(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 game 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 1or 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.)

was

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

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.).... 774
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

§ 388. PERSONS ENTITLED TO COMPENSATION FOR DEATE OF EM-
PLOYEE (DEPENDENTS).

Customary receipt of financial assistance from another does not make re-
cipient a dependent or partial dependent within the Act. Gherardi v.
Connecticut Co. (Conn.).
Ascertainment of dependents is made as of time of injury. Bott's Case. In
re Employers' Liability Assur. Corp, Ltd. (Mass.)
Daughter of deceased servant's widow, though member of servant's family
at time of death, not being his child, is not entitled to compensation.
Holmberg's Case (Mass.)

212

273

899

§ 389. SUBROGATION TO RIGHTS OF INJURED EMPLOYEE.
Where insurance carrier, liable for payment of death claim to next of kin,
has taken assignment from them of cause of action against party causing
death, it cannot sue thereon, such right being in the executor or ad-
ministrator. Travelers' Ins. Co. v. Louis Padula Co., Inc. (N. Y.)...... 546
Vernon's Sayles' Ann. Civ. St. 1914, art. 246qq, only gives right of subroga-
tion when cause of action for injury to employee caused by third person
has vested in injured employee-elevator company which caused death
of employee of subcontractor painting store building, which gave work
of remodeling and repairing to independent contractor, not having be-
come liable to deceased employee for any sum under Compensation Act,
no right of subrogation against elevator company is given by Vernon's
Sayles, Ann. Civ. St. 1914, art. 5246qq, to insurer of merchandise com-
pany and independent contractor, which paid award for death. Etna
Life Ins. Co. v. Otis Elevator Co. (Tex.)..
Insurance association is not subrogated to rights of employee against third
person. City of Austin v. Johnson (Tex.).

592

845

Where injured servant accepts compensation, insurer is subrogated to ser-
vant's cause of action against third person whose negligence caused in-
jury. Labufi v. Worcester Consol. St. Ry. Co. (Mass.)..

903

$390.

391.

§ 392.

PAYMENT OF COMPENSATION.

PERSONS LIABLE.

-AUDIT OF CLAIMS INCURRED OR PAID BY BOARDS OR COM-
MISSIONS.

§ 3932. MEDICAL ATTENDANCE AND SERVICES.
Where employer fully complied with medical aid requirements of the act
during first two weeks after injury, it was not estopped from invoking
benefits of the act. Boyer v. Crescent Paper Box Factory, Inc. (La.)..
Employees under term "surgical aid" are entitled to splints, crutches, artifi-
cial legs, artificial eyes, etc. Olmstead v. Lamphier et al. (Conn.)......

(C) PROCEEDINGS.

§ 394. NATURE AND FORM OF REMEDY.
Commission may proceed in mandamus to compel employers to secure pay-
ment of compensation to employees required by the act. Industrial Com-
mission of Utah v. Daly Mining Co. (Utah).

Where employer has rejected Compensation Act and injured employee has
not, employee may sue under Code Supp. 1913, Sec. 2477m; Section
2477m2, not providing for exclusive remedy. Balen v. Colfax Consol.
Coal Co. (Iowa).
Contract to pay weekly sums in settlement of liability of employer for death
of employee equal to maximum provided in act and supplemented thereto
may be enforced by persons claiming payments, in Supreme Court by com-
mon law action. Holzapfel et al. v. Hoboken Manufacturers' R. Co.
(N. J.)

§ 395. WHAT LAW GOVERNS.
Whether employee was engaged in "interstate commerce" at time he was
injured, depends on the character of the act at that time-fact that
appliance he was repairing when injured might be used in Interstate
commerce does not establish that cause of action falls within act. O'Dell
v. Southern Ry. Co. (U. S.)..
Where railroad and employee are both engaged in interstate commerce, such
employee does not assume the risk of injury inflicted as result of negli-
gence of fellow employee. Eskelsen v. Union Pac. R. Co. (Neb.)
Railway signal maintainer, who was furnished by his employer, interstate
carrier, tricycle to make rounds was engaged in interstate commerce
when returning to his home after leaving last signal. Louisville & N.

R. Co. v. Mullins' Adm'x. (Ky.)....

71
774

156

621

819

23

97

488

Helper of driver of delivery truck, voluntarily gave up his seat to girls on
way home from work and stood on running board, and who when truck
struck obstruction in road was jolted off truck and sustained fatal in-
juries, was injured while engaged in course of employment, as how he
happened to be sitting where he was at time he fell was immaterial,
Siglin et al. v. Armour & Co. (Pa.)...

Where lumber is loaded in box car in one state and shipped to another state
to be used in manufacture of doors for grain cars designed for handling
interstate shipments of grain, employee who unloaded lumber in latter
state is engaged in "interstate commerce." Gulf, C. & S. F. Ry. Co. v.
Drennan (Tex.)

Where decedent was employed in interstate commerce by railroad company
on one of its boats, then being used for that purpose, the case fell within
Employers' Liability Act. The Erie Lighter 108 (U. S.)...
Return of brakeman to his engine when struck and injured was so im-
mediately connected with previous act as to be necessary incident thereto
so as to fall within Employers' Liability Act. Erie R. Co. V. Downs
(U. S.)

556

701

606

593

679.

675

Laborer, injured while cleaning soot from boiler in railroad's power plant,
generating electricity for operation of trains on one railroad wholly in
New York and on another partly in New York and partly in New Jersey
was engaged in interstate commerce within federal act. Guida V.
Pennsylvania R. Co. (N. Y.)...
Federal Employers' Liability Act refers to "interstate commerce" in practical
sense and test is whether employee at time of injury was engaged in
interstate transportation or in work so closely related thereto as to be
practically part thereof. Eskelsen v. Union Pacific R. Co. (Neb.)........ 665
Employee of plaster manufacturing company while engaged in performance
of his duties in unloading rock from vessel lying alongside pier in East
River, was engaged in performance of maritime contract and Com-
mission had no jurisdiction. Keator et al. v. Rock Plaster Mfg. Co.
et al-Appeal of State Industrial Commission (N. Y.)...
Longshoreman loading a vessel in navigable waters was performing a marl-
time contract and commission would have no jurisdiction. Anderson v.
Johnson Lighterage Co. et al.-Appeal of State Industrial Commission
(N. Y.)
Timekeeper of gang repairing track used in interstate commerce, killed while
crossing tracks on his way to telegraph report to roadmaster, was en-
gaged in interstate commerce. Crecelius v. Chicago M. & St. P. Ry.
Co. (Mo.)
Federal Safety Appliance Act excludes application of Workmen's Compensation
Ac' in all cases in which former act is applicable, as Congress having
entered upon field of regulation, the paramount character of its authority
excludes state regulation on the subject. Kenna v. Calumet, H. & S.
E. R. Co. (Ill.)

396. JURISDICTION OF COURTS.

Court of Appeals has no jurisdiction to entertain appeal from Appellate
Division on question certified by Industrial Board to Appellate Division.
In re Workmen's Compensation Fund. Self-Insurers' Ass'n et al. v.
State Industrial Commission. (N. Y.)..
Under act giving commission full power to determine all questions within its
jurisdiction and making its decision final, decision of commission is final
and free from judicial review only when within its jurisdiction-commis-
sion does not have exclusive power to determine what matters come
within its jurisdiction, but that is for the courts. Industrial Commission
of Utah v. Evans, District Judge (Utah).

Exclusive maritime jurisdiction of the United States does not extend to
claims arising out of work done on vessels prior to launching, and where
parties stipulated facts under Workmen's Compensation Law, commission
had jurisdiction. Employers' Liability Assur. Corp., Ltd., of London
Eng., v. Industrial Accident Commission (Cal.).
Though the incomplete agreement was approved by board, its jurisdiction
was not thereby terminated, the employee having right to ignore agree-
ment in view of Sec. 57, making agreement for compensation voidable
by employee if not in form prescribed by board and filled with it.
Standard Cabinet Mfg. Co. v. Iliff (Ind.)..
Employee of plaster manufacturing company while engaged in performance

of his duties in unloading rock from vessel lying alongside pier in East
River, was engaged in performance of maritime contract and Com-
mission had no jurisdiction. Keator et al. v. Rock Plaster Mfg. Co.
et al. Appeal of State Industrial Commission (N. Y.)...
Longshoreman loading a vessel in navigable waters was performing a mari-
time contract and commission would have no jurisdiction. Anderson v.
Johnson Lighterage Co. et al.-Appeal of State Industrial Commission
(N. Y.)
Where, although federal courts had exclusive jurisdiction, State Industrial
Commission assumed to make award, fact that both employer and in-
surance carrier acquiesced in award to extent that certain payments were
made thereunder and no appeal taken therefrom, did not estop them

674

809

869

543

848

25

51

675

674