exercise of purely governmental functions, not carried on for profit, there was no possibility of passing on the burden entailed by compensation payments to a consuming public; but the weight of this argument as applying to a governmental corporation sustained entirely by taxation is not entirely obvious.

The Supreme Court of Massachusetts denied the benefits of the compensation law of that State to a teacher of automobile repairing in an industrial school conducted by the city of Lowell, who met his death as a consequence of some improper action of a boy whom he was instructing, the claim being rejected on the ground that the injured man was not a laborer, workman, or mechanic within the meaning of the law. (Lesuer v. City of Lowell, p. 281.) The same court held, however, that a schoolhouse janitor who personally did the work of cleaning, heating, washing windows, etc., about the building was a laborer within the meaning of the law and not in the "official service," though an appointee under the civil-service act. An award in his behalf was therefore affirmed. (White v. City of Boston, p. 280.)

The Washington statute provides compensation benefits for public employees unless State law or city charter or ordinance makes other provision in their behalf. Workmen injured while employed in the lighting department of the city of Seattle claimed damages at common law for their injuries, and a settlement was agreed upon. The contention being made that the city was under the provisions of the compensation act, a subordinate court took the ground that either common-law damages or a pension provided for by the city charter were the remedies available. The supreme court, however, held that the alternative provisions of the compensation law did not revive. any common-law liability as to public employees, but that where the city charter makes provision that provision must be accepted. The constitutionality of such construction was challenged, but the court overruled the contention, even though different recoveries might result in different municipalities, holding that where a substantial provision was made, the local enactment would govern. (State ex rel. Fletcher v. Carroll, p. 278.)

Extraterritoriality.-Two opinions noted under this head come from the Supreme Court of California and indicate a restriction to State boundaries of the operation of the law. In North Alaska Salmon Co. v. Pillsbury (p. 231), a workman was injured in Alaska while employed under a California contract. On first consideration the court assumed jurisdiction, but on a second examination of the question a contrary conclusion was reached, a distinction being drawn between a compulsory law, under which the parties to the contract have no voice in the matter, and an elective law, which they might voluntarily accept as a part of the contract. In the second instance

(Kruse v. Pillsbury, p. 232), the claim was on account of a man killed on a vessel in a port in the State of Washington. Accepting the view as to extraterritoriality previously adopted by the court, the contention was still made that by a fiction of admiralty the vessel was a part of the territory of the State of California, so that the law would apply. This contention was rejected and the award made by the commission was annulled.

Interstate commerce.-A question of the highest degree of importance and interest was passed upon by the Supreme Court of the United States in its consideration of decisions made by the New York courts in favor of persons employed in interstate commerce, but injured without the negligence of the employer. These courts had held that the Federal statute relating to employers' liability limited itself to cases in which injury was due to negligence, and the State might find an unoccupied field in which it could act and furnish a remedy for injuries due merely to the hazards of employment without regard to negligence. This the Supreme Court denied (New York Central R. Co. v. Winfield, p. 260), the conclusion being reached that the Federal act undertook to define the full scope of the common carrier's liability when it enacted a law basing that liability on negligence, and declared the act to be both comprehensive and exclusive, two justices dissenting.

The New Jersey courts had taken the same view as the New York courts, and in Erie R. Co. v. Winfield (p. 265) the Supreme Court announced its reversal of a decision sustaining an award in behalf of a compensation claimant. An added point considered in the New Jersey case was as to the nature of the injured man's employment, he having left his engine, the injury occurring while he was leaving the yard after completing his day's work. Since he had been engaged in interstate commerce during at least a portion of his employment through the day, it was held that in leaving the yard he was still employed in commerce of the same nature, since the trip through the yard was a necessary incident of his day's work. It was also held that since the Federal law was dominant, no presumption of election to be governed by the State law could be imputed or allowed. Following the decision in this case, the Court of Errors and Appeals of New Jersey reversed a decision of the Supreme Court of that State, which had affirmed an award in a case involving no negligence on the part of the employer, stating that the State courts are bound by the decisions of the Supreme Court of the United States (Rounsaville v. Central R. R. of New Jersey, p. 267).

The difficulty of deciding between State and Federal legislation is in no wise minified by the enactment of compensation laws in lieu of liability statutes, and the question of what employments shall be classed as interstate continues to afford difficulty. The Supreme

Court of Illinois affirmed an award made by the State board in a case (Jackson v. Industrial Board, p. 259), in which a workman employed in painting bridges, towers, etc., had been killed and compensation claimed in his behalf. An action had been brought under the Federal liability statute, but was demurred to on the ground that the employee was not engaged in interstate commerce. The court sustained this, and an award under the compensation law followed, the supreme court declaring that no right to compensation had been lost by the election to sue under the liability act. The decision in the foregoing case that the employment was not in interstate commerce can hardly be regarded as in harmony with the finding of the Court of Appeals of New York that a laborer incurring injury while mowing weeds and grass along the right of way was engaged in interstate commerce, since his "work contributed to the safety and integrity of the railroad," which must certainly be admitted of the work of a painter of bridges, switch towers, and the like. In the New York case (Plass v. Central New England R. Co., p. 267), an award affirmed by the supreme court of the State was reversed on the ground that the Supreme Court of the United States had placed interstate employees entirely outside the scope of the State law. The supreme court of the State, appellate division, also ruled against the compensation claim of a plumber whose duty it was to look after the pipes and plumbing equipment about the stations of the road employing him, the court holding that this was a maintenance of the ways and instrumentalities of interstate commerce (Vollmers 2. New York Central R. Co., p. 268). Where, however, a spur track for private use was the place of injury of a railroad laborer, no interstate traffic being moved thereon at the time, it was held that the injury was of an intrastate nature, so that the compensation law could apply (In re Liberti, p. 270); and where a switchman was killed while assisting in the movement of cars onto a storage track, to be iced for the shipment of meats, it was held by the Supreme Court of Illinois (Chicago Junction R. Co. v. Industrial Board, p. 270) that even though several cars subsequently were loaded for interstate shipment they had not acquired the interstate quality at the time of the injury, and a compensation award was affirmed.

Admiralty. The courts of New York (Southern Pacific Co. v. Jensen, p. 203), and California (North Pacific Steamship Co. v. Industrial Accident Commission, 163 Pac. 199-case not reproduced), had taken the view that longshoremen and stevedores might choose the benefits of the compensation laws of their respective States in lieu of proceeding in admiralty, and a number of awards were made and approved in accordance with these views. The Supreme Court of the United States, however, in the Jensen case, declared the remedy offered by the State compensation laws incompatible

with the theory of uniformity contemplated by the Constitution in matters of maritime commerce; so that, although there was by Federal law a saving to suitors of the common-law remedy, where competent, in lieu of admiralty proceedings, the remedy proposed by the compensation statutes, wholly unknown to the common law, could not under existing law be regarded as an alternative. A like conclusion was announced by the same court in the case of Clyde Steamship Co. v. Walker (p. 203), the principles involved being the

It is of interest to note that Congress has met the situation by reserving to suitcrs not only the common-law rights previously enjoyed by them, but permitting them also to make claim under the compensation laws of their States of residence if they so elect.


The fimitation implied in the phrase "arising out of and in the course of the employment," is of the essence of the right to compensation under practically every law. Washington provides by its law a kind of insurance covering the employee while at his work, compensation being "a kind of pension in exchange for absolute insurance on his master's premises." The Ohio statute does not contain the words "arising out of," but despite this omission the supreme court of the State held (Fassig v. State, p. 212), that it was the plain intention of the act not to cover any injury which had its cause outside of and disconnected with the employment. In most acts, however, the two terms are used conjunctively and no question can arise as to the necessity of both tests.

The Supreme Court of Illinois (Chicago Rys. Co. v. Industrial Board, p. 215) overruled the contention that negligent conduct on the part of the injured man would take him out of the employment in which he was engaged, nor would the accident be for this reason regarded as out of the course of employment. Reference might here be made to the Maggelet case (p. 274) previously noted, where it was held that the neurosis from which the claimant suffered did not arise out of the employment as a necessary incident thereof.

The effect of natural conditions was involved in a case that was before the Appellate Court of Indiana (In re Harraden, p. 250), in which a fire insurance agent slipped upon the icy sidewalk while going from the railway station to a hotel in a city to which he had been sent on business. Compensation was allowed on the ground that the claimant was where he was on account of his employment, and that his exposure to such increased hazards generally was a consequence of the nature of his employment. The Supreme Court of Massachusetts took the opposite view in quite a similar case (Donahue v. Maryland Casualty Co., p. 251), where a salesman was returning from a business interview to take a car, and slipped on the ice.

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The court reversed an award for compensation on the ground that the injury was due to a risk common to the public, and not due to his employment. A different condition existed in a case before the Supreme Court of New York (Redner v. H. C. Faber & Son, p. 242), in which a workman slipped on the ice on a street which separated the two parts of the employer's factory. The contention that it was simply a street accident was rejected, even though the street was an actual highway, since its situation was such that in going from part to part of the plant it was necessary to cross it.

Two other cases in which the question was raised as to the effects of natural conditions were passed upon by the Supreme Court of Minnesota. In one (State ex rel. Nelson v. District Court, p. 202), a janitor suffered from the freezing of a toe, the ultimate result being the amputation of his leg, the freezing taking place while he was engaged in shoveling snow on a very cold day. The lower court denied the claim on the ground that while the injury arose out of the employment, it was not an accident; but as the supreme court had reached the conclusion in another case that freezing is an accident, the only question that remained on this appeal was as to whether it arose out of the employment, which the court held to be true in this instance. Another case decided the same day also reversed the lower court, and approved the claim of a widow for the death of her husband, who had suffered from sunstroke while employed as a street laborer (State ex rel. Rau v. District Court, p. 202). There was a conjunction of extreme conditions of exposure to heat and moisture, which led the court to say that there was a violent injury produced by a power not natural.

The principle involved in the Redner case differs in no respect from that of the workman going from one part of the building to another to answer a telephone call (Holland-St. Louis Sugar Co., v. Shraluka, p. 240). Here the Appellate Court of Indiana affirmed an award, especially as the workman had been summoned by a superior, and might well assume that the answering of the telephone pertained to his employment.

It is generally held that horseplay is so removed from the duties of workmen that injuries in the course of it are not compensable, but the court last mentioned approved an award in a case (In re Loper, ›. 245), in which a workman was fatally injured in his attempt to jerk ay from the nozzle of a compressed air hose turned upon him by fellow-workman, the evidence indicating that the injured man was the time attending to his duties, and that the employer at other times had acquiesced in the play which in this instance resulted fatally.

Injury received while the employee is engaged in an act outside the line of his duty would ordinarily remove him from the operation

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