C. C. 5; Conway v. Pumpherson Oil Co. Station & Depot Co. 56 Mich. 261, 56 Am. [1911] S. C. 660, 48 Scot. L. R. 632, 4 B. Rep. 382, 22 N. W. 802; Taylor v. George W. W. C. C. 392; Harding v. Brynddu Colliery Bush & Sons Co. 12 L.R.A. (N.S.) 853, and Co. [1911] 2 K. B. 747, 80 L. J. K. B. N. note, 6 Penn. (Del.) 306, 66 Atl. 884; S. 1052, 105 L. T. N. S. 55, 27 Times L. R. Powers v. Calcasieu Sugar Co. 48 La. Ann. 500, 55 Sol. Jo. 599, 4 B. W. C. C. 269. 483, 19 So. 455; Sharp v. Johnson & Co. Messrs. W. C. Owen, Attorney General, | [1905] 2 K. B. 139, 74 L. J. K. B. N. S. 567, and Byron H. Stebbins, Assistant Attor-53 Week. Rep. 597, 92 L. T. N. S. 675, 21 ney General, for respondent Industrial Com- Times L. R. 482; Blovelt v. Sawyer [1904] mission: 1 K. B. 271, 73 L. J. K. B. N. S. 155, 68 J. P. 110, 52 Week. Rep. 503, 89 L. T. N. S. 658, 20 Times L. R. 105; Hoskins v. Lancaster, 26 Times L. R. 612, 3 B. W. C. C. 476; Perry v. Anglo-American Decorating Co. 3 B. W. C. C. 310; Fitzpatrick v. Hind

The finding of the Industrial Commission that August Althoff was injured "while engaged in performing service growing out of and incidental to his employment" is final and conclusive.

C. 7; Lowry v. Sheffield Coal Co. 24 Times L.
R. 142, 1 B. W. C. C. 1; Riley v. William
Holland & Sons [1911] 1 K. B. 1029, 80 L.
J. K. B. N. S. 814, 104 L. T. N. S. 371, 27
Times L. R. 327, 4 B. W. C. C. 155.
Mr. Max P. Kufalk for respondent Alt-

Northwestern Iron Co. v. Industrial Comley Field Colliery Co. 3 W. C. C. 37, 4 W. C. mission, 154 Wis. 97, post, 366, 142 N. W. 271, Ann. Cas. 1915B, 877; State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N. W. 500; Travelers' Ins. Co. v. Hallauer, 131 Wis. 371, 111 N. W. 527; State ex rel. McManus v. Policemen's Pension Fund, 138 Wis. 133, 20 L.R.A. | hoff. (N.S.) 1175, 119 N. W. 806; Northwestern Union Packet Co. v. McCue, 17 Wall. 508, 514, 21 L. ed. 705, 707; Wood, Mast. & S. § 404.

The decision of the Industrial Commission is correct on the undisputed facts.

Barnes, J., delivered the opinion of the court:

The appellant contends that it is not liable for injuries received by one of its employees while on his way to work, that the relation of master and servant did not exist when deceased was injured, and that if there is any liability on the part of the city, it arises out of § 1339, Stat.

Jesson v. Bath, 113 L. T. N. S. 206, 4 W. C. C. 9; M'Neice v. Singer Sewing Mach. Co. [1911] S. C. 13, 48 Scot. L. R. 15, 4 B. W. C. C. 351; Pierce v. Provident Clothing & Supply Co. [1911] 1 K. B. 997, 80 L. J. K. Section 2394-4, Stat. 1911, provides for B. N. S. 831, 104 L. T. N. S. 473, 27 Times liability for compensation "where, at the L. R. 299, 55 Sol. Jo. 363, 4 B. W. C. C. 242; | time of the accident, the employee is perRefuge Assur. Co. v. Millar, 49 Scot. L. R. | forming service growing out of and inci67; Nelson v. Belfast Corp. 42 Ir. Law Times, 223, 1 B. W. C. C. 158.

The relation of master and servant is not limited to the time that the latter is actually engaged in work, but includes a reasonable time before he commences and after he ceases such work.

Ewald v. Chicago & N. W. Co. 70 Wis. 420, 5 Am. St. Rep. 178, 36 N. W. 12, 591; McGregor v. Auld, 83 Wis. 539, 53 N. W. 845; Helmke v. Thilmany, 107 Wis. 216, 83 N. W. 360, 8 Am. Neg. Rep. 172; Charron v. Northwestern Fuel Co. 149 Wis. 240, 49 L.R.A. (N.S.) 162, 134 N. W. 1048, Ann. Cas. 1913C, 939; Pool v. Chicago, M. & St. P. R. Co. 53 Wis. 657, 11 N. W. 15, 56 Wis. 227, 14 N. W. 46.

The relation of master and servant exists when the servant is under the master's control and subject to his orders.

5 Labatt, Mast. & S. p. 5425; 26 Cyc. 1088; East Line & R. River R. Co. v. Scott, 71 Tex. 703, 10 Am. St. Rep. 804, 10 S. W. 298; Harvey v. Texas & P. R. Co. 92 C. C. A. 237, 166 Fed. 385; St. Louis, A. & T. R. Co. v. Welch, 72 Tex. 298, 2 L.R.A. 839, 10 S. W. 529; Broderick v. Detroit Union R.

dental to his employment." The material questions in the case are: Did the relation of master and servant exist when the accident occurred? And, if so, was Althoff performing a service growing out of and incidental to his employment? There is no dispute on the evidence pertaining to these questions, and they involve propositions of law rather than matters of fact.

The relation of master and servant may extend beyond the hours the servant is actually required to labor, and in some instances to places other than the premises where the servant is employed. Ewald v. Chicago & N. W. R. Co. 70 Wis. 420, 5 Am. St. Rep. 178, 36 N. W. 12, 591; Helmke v. Thilmany, 107 Wis. 216, 221, 83 N. W. 360, 8 Am. Neg. Rep. 172; Pool v. Chicago, M. & St. P. R. Co. 53 Wis. 657, 11 N. W. 15; Kunza v. Chicago & N. W. R. Co. 140 Wis. 440, 123 N. W. 403.

The courts very generally hold that the relation of master and servant exists when the servant is under the master's control and subject to his direction. 5 Labatt, Mast. & S. 5425, § 1806; Harvey v. Texas & P. R. Co. 92 C. C. A. 237, 166 Fed. 385;

Taylor v. George W. Bush & Sons Co. 6 | 64 J. P. 532, 48 Week. Rep. 681, 83 L. T. N. Penn. (Del.) 306, 12 L.R.A. (N.S.) 853, 66 S. 44, 16 Times L. R. 412. Atl. 884; St. Louis, A. & T. R. Co. v. Welch, 72 Tex. 298, 2 L.R.A. 839, 10 S. W. 529; Powers v. Calcasieu Sugar Co. 48 La. Ann. 483, 19 So. 455.

Ruegg, Employers' Liability, 377; Gilmour v. Dorman, L. & Co. 105 L. T. N. S. 54, 4 B. W. C. C. 279; Holness v. Mackay [1899] 2 Q. B. 319, 68 L. J. Q. B. N. S. 724, 47 Week. Rep. 531, 80 L. T. N. S. 831, 15 Times L. R. 351, 1 W. C. C. 13; Walters v. Staveley Coal & I. Co. 105 L. T. N. S. 119, 55 Sol. Jo. 579, 4 B. W. C. C. 303; Caton v. Summerlee & M. Iron & Coal Co. 39 Scot. L. R. 762, 4 Sc. Sess. Cas. 5th series, 989, 10 Scot. L. T. 204; Boyd, Workmen's Compensation, § 186; Harper, Workmen's Compensation, § 34; 1 Bradbury, Workmen's Compensation, p. 404; McLaren v. Caledonian R. Co. [1911] S. C. 1075, 48 Scot. L. R. 885, 5 B. W. C. C. 492; McNicol's Case, 215 Mass. 497, ante, 306, 102 N. E. 697, 4 N. C. C. A. 522; Graham v. Barr [1913] S. C. 538 [1913] W. C. & Ins. Rep. 202, 50 Scot. L. R. 391, 6 B. W. C. C. 416.

instances in which the Commission, by its final action, has denied to him such right, upon some ground going to the basis of his claim, such as self-infliction of the injury, of which he complains, or incurrence of the injury otherwise than in the course of his employment. As the Commission itself and the fund are creatures of the legislative will, it was competent for the legislature to deprive the Commission of all discretionary power respecting the right of participation, and make it a purely legal question. In other words, it could make it mandatory upon the Commission to allow participation, if the injury arose out of and in the course of employment, and was not self-inflicted, and deny to the Commission the right to determine what constitutes self-inflicted injury or an injury incurred otherwise than in the course of employment, and whether the claimant is a dependent of the injured

Poffenbarger, J., delivered the opinion person, by making all such questions arising

of the court:

The rejection of the claim to right of participation in the workmen's compensation fund, made on behalf of the dependents of Guiseppe Zippi, by the acting royal consul of Italy, is the occasion of this first application to this court for the exercise of its supervisory powers over the Public Service Commission respecting its administration of that fund. This proceeding is authorized by a statute different from the one under which United Fuel Gas Co. v. Public Service Commission, 73 W. Va. 571, 80 S. E. 931, was instituted, but the constitutional provisions referred to in the opinion in that case render it impossible to treat this one as an ordinary appeal, or bring it within the appellate jurisdiction of this court. What the statute (§ 43 of chapter 10 of the Acts of 1913, Code 1913, chap. 15p (§ 699) denominates an appeal must, if possible, be regarded as a right given to a claimant to participation in the fund in question, to apply to this court for the exercise of its original jurisdiction. Any other construction would render the provision unconstitutional. The Commission itself is not a court. It is only an administrative board, possessing quasi judicial and legislative powers. United Fuel Gas Co. v. Public Service Commission, cited. Its powers in the administration of the workmen's compensation fund are not substantially different from its powers over other matters within its control; and the principles upon which the jurisdiction of this court over its acts, by original process, was sustained in the case just cited, determine the jurisdictional question now presented.

Only the claimant to participation in such fund can apply to this court for such relief, and he is permitted to do so only in those

upon the facts disclosed questions of law for determination by this court, in the exercise of its supervisory power over officers and inferior tribunals. In this manner jurisdiction has been conferred upon this court to order allowance of such claims, as it would in the cases of formal applications for writs of mandamus. As to this question, the legislature conferred only ministerial power upon the Commission.

In the opinion of the Commission, the injury by which Zippi's death was occasioned did not arise out of his employment, nor was it incurred in the course thereof. He was an employee of Kefauver & McLaran, contractors, engaged in construction work on some portion of the Baltimore & Ohio Railroad. Just what the relation of this work to the main line of the railroad was is not shown, but Zippi was not killed on the construction work. His death occurred on the main line, and it is supposed to have resulted from his having stepped in front of one train in an effort to escape another. The inspector's report and other evidence are to the effect that he was walking on the main double track in going to his work. A statment of the case, prepared by a claim clerk, says his only way of access to his work was by way of the main line; but this statement is not sustained by evidence. The inspector's report does not show it, nor is there any other evidence bearing on the question. In the brief filed for the petitioner it is said Zippi was killed only a few minutes before the usual hour for the commencement of actual work, 7 o'clock A. M., the accident having occurred at 6:55 A. M.; but no evidence shows at what time he would have commenced his work.

If it had been shown that the decedent, approaching his place of work by the only

means of access thereto, was almost within ployment, must also be regarded as having the reach of it at the time of his injury, been incurred in the course of the employsome of the authorities relied upon might ment and to have arisen out of the same. iustify the allowance of the claim; for the If, in such case, injury does not occur on employment is not limited to the exact mo- the premises, but in close proximity to the ment of arrival at the place of actual work, place of work, and on a road or other way nor to the moment of retirement therefrom. intended and contemplated by the contract It includes a reasonable amount of time be- as being the exclusive means of access to fore and after actual work. Gane v. Norton the place of work, the same principle would Hill Colliery Co. [1909] 2 K. B. 539, 78 apply and govern. If the place at which the L. J. K. B. N. S. 921, 100 L. T. N. S. 979, injury occurred is brought within the con25 Times L. R. 640, 2 B. W. C. C. 42; McKee tract of employment by the requirement of v. Great Northern R. Co. 42 Ir. Law, its use by the employee, so that he has no Times 132, 1 B. W. C. C. 165 Bradbury, discretion or choice as to his mode or manWorkmen's Compensation, pp. 404-407. ner of coming to work, such place and its A reasonable time after the termination of use seem logically to become elements or actual work is allowed. If a workman is factors in the employment, and the injury injured on the premises of the employer, and thus arises out of the employment and is while leaving his place of actual work by incurred in the course thereof. But, on the the usual course of travel, the injury is contrary, if the employee, at the time of deemed to have arisen out of the employ- the injury, has gone beyond the premises of ment. Kinney v. Baltimore & O. Employes' the employer, or has not reached them, and Relief Asso. 35 W. Va. 385, 15 L.R.A. 142, has chosen his own place or mode of travel, 14 S. E. 8. Since injury after termination the injury does not arise out of his employof actual work, while on the premises of the ment, nor is it within the scope thereof. employer and in pursuit of the usual way of leaving the same, is held to be within the course of employment and to have arisen out of the same, it seems clear that an injury to a workman while coming to his place of work on the premises of the em ployer, and by the only way of access, or the one contemplated by the contract of em

As the evidence adduced in support of the claim did not, for the reasons already stated, bring it within the principles here referred to, the Commission properly rejected the claim, and the prayer for an order, requiring allowance thereof, cannot be granted.

Annotation-Recovery of compensation for injuries received while going to and from work.

As to application and effect of workmen's compensation acts generally, see annotation, ante, 23.

In the absence of special circumstances the act does not apply to a workman going to or from his work. Edwards v. Wingham Agri. Implement Co. [1913] 3 K. B. (Eng.) 596, 82 L. J. K. B. N. S. 998, 109 L. T. N. S. 50 [1913] W. N. 221, 57 Sol. Jo. 701, 6 B. W. C. C. 511; Kelly v. The Foam Queen (1910) 3 B. W. C. C. (Eng.) 113; Poulton v. Kelsall [1912] 2 K. B. (Eng.) 131, 81 L. J. K. B. N. S. 774, 106 L. T. N. S. 522, 28 Times L. R. 329, [1912] W. C. Rep. 295 [1912] W. N. 98,5 B. W. C. C. 318; Davies v. Rhymney Iron Co. (1900) 16 Times L. R. (Eng.) 329, 2 W. C. C. 22; Nolan v. Porter (1909) 2 B. W. C. C. (Eng.) 106; Hills v. Blair (1914) 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409.

But undoubtedly such accident might be brought within the scope of the employment by the terms of the contract of employment. DE CONSTANTIN V. PUBLIC SERVICE COMMISSION; Fumiciello's

Case (1914) 219 Mass. 488, 107 N. E. 349; Donovan's Case (1914) 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778, 4 N. C. C. A. 549.

So, a miner injured while riding from his home to the mine on a train provided by the employer in accordance with the terms of the contract of employment suffers injury from accident arising out of the employment. Cremins V. Guest [1908] 1 K. B. (Eng.) 469, 77 L. J. K. B. N. S. 326, 24 Times L. R. 189, 98 L. T. N. S. 335, 1 B. W. C. C. 160; Walton v. Tredegar Iron & Coal Co. [1913] W. C. & Ins. Rep. (Eng.) 457, 6 B. W. C. C. 592.

Ordinarily the employment is held to begin in the ordinary course only when the time for work has arrived and the locality has been reached at which the work is to be performed. Anderson v. Fife Coal Co. (1910) 47 Scot. L. R. 3 [1910] S. C. 8, 3 B. W. C. C. 539; Whitebread v. Arnold (1908) 99 L. T. N. S. (Eng.) 103; Holness v. Mackay [1899] 2 Q. B. (Eng.) 319, 68 L. J. K. B. N. S.

724, 47 Week. Rep. 531, 80 L. T. N. S. | 831, 15 L. T. N. S. 831, 15 Times L. R. 351.

In a Scotch case recovery was denied where a workman who, after the conclusion of his day's work, was walking along a private railway track belonging to his master, was run over at a point about 230 yards from the place where he worked. Caton v. Summerlee & M. Iron & Coal Co. (1902) 4 Sc. Sess. Cas. 5th series, 989, 39 Scot. L. R. 762, 10 Scot. L. T. 204.

A workman does not suffer injury by accident arising out of and in the course of his employment where he is injured on his way home from work along a public footpath, although the path had been | dedicated to the public by the employers, over whose land it ran. Williams v. Smith (1913) 108 L. T. N. S. (Eng.) 200 [1913] W. C. & Ins. Rep. 146, 6 B. W. C. C. 102.

A workman whose duties were entirely underground did not suffer injury by accident arising out of and in the course of his employment where he was injured after he had finished his day's work, and was above ground at a place about 400 feet from the shaft's mouth, and 280 yards from the colliery office. Graham v. Barr [1913] S. C. 538, 50 Scot. L. R. 391 [1913] W. C. & Ins. Rep. 202, 6 B. W. C. C. 412.

Compensation is not recoverable where a workman had concluded his day's work and was injured while riding to his home on a bicycle, along the main road. Edwards v. Wingham Agri. Implement Co. [1913] 3 K. B. (Eng.) 596, 82 L. J. K. B. N. S. 998, 109 L. T. N. S. 50 [1913] W. N. 221, 57 Sol. Jo. 701, 6 B. W. C. Č. 511.

It has been said, however, that the moment that actual work begins cannot be taken as the true moment of the commencement of the employment for the purposes of the act. Cross v. Catteral, an unreported decision of the House of Lords cited in Hoskins v. Lancaster (1910) 26 Times L. R. (Eng.) 612, 3 B. W. C. C. 476. In Lawless v. Wigan Coal & I. Co. (1908) 124 L. T. Jo. (Eng.) 532, 1 B. W. C. C. 153, the court said: "The authorities clearly decide that if a workman arrives at the master's premises where he is employed at, or within a reasonable margin before, the time at which he is due to commence work, and, whilst physically engaged in making his way from the entrance of the master's premises to the place where he works, meets with an accident, it is open to the judge to say that the accident arose out of and in the course of his employment."

It is not necessary that the hour of work shall have arrived and that the work has itself been actually begun. Hills v. Blair (1914) 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409; MILWAUKEE v. ALTHOFF, ante, 327.

And the moment that the actual work stops cannot be considered in every case as the time of the termination of the employment. Gane v. Norton Hill Colliery Co. [1909] 2 K. B. (Eng.) 539, 78 L. J. K. B. N. S. 921, 100 L. T. N. S. 979, 25 Times L. R. 640, 2 B. W. C. C. 42.

On the one hand, it has been held that it is not a sufficient test that the workman is on the premises of the employer. Hills v. Blair (Mich.) supra. On the other hand, the circumstance that the deceased employee was not upon the estate of his employer at the time of receiving his injury has been said to be of slight significance. Re McPhee (1915) — Mass. 109 N. E. 633.

An accident to a workman, caused by slipping on some ice at a point a quarter of mile from the place of work, does not arise out of and in the course of the employment, although he was on the employer's premises at the time. Gilmour v. Dorman (1911) 105 L. T. N. S. (Eng.) 54, 4 B. W. C. C. 279.

A miner who, on going to his place of work, takes, with the employer's permission, a short cut over the employer's premises, and slips on some steps three quarters of a mile from the place of work, does not suffer injury by accident arising out of and in the course of his employment. Walters v. Staveley Coal & I. Co. (1911;/H. L.) 105 L. T. N. S. (Eng.) 119, 55 Sol. Jo. 579, 4 B. W. C. C. 303.

Recovery may be had for an accident occurring before the place of work has been reached, if, during the antecedent period within which it occurred, the servant was, as a matter of fact, under the master's control. Holmes v. Great Northern R. Co. [1900] 2 Q. B. (Eng.) 409, 83 L. T. N. S. 44, 69 L. J. Q. B. N. S. 854, 64 J. P. 532, 48 Week. Rep. 681, 16 Times L. R. 412; Mackenzie v. Coltness Iron Co. (1904) 6 Sc. Sess. Cas. 5th series (Scot.) 8; Fitzpatrick v. Hindley Field Colliery Co. (1901) 4 W. C. C. (Eng.) 7.

Where employees came to their work by a train which arrived about twenty minutes before the actual work began, and, to the knowledge of the employer, customarily spent the twenty minutes in getting refreshments in a cabin maintained by the employer for them, a workman who, while proceeding to deposit his