of the act. Thus the Supreme Court of Illinois (Eugene Dietzen Co. v. Industrial Board, p. 251) reversed an award in the case of an employee engaged in buffing, who opened the cover near a ventilating fan for the purpose of recovering from the dust receptacle an article which he had accidentally dropped therein; so in a Massachusetts case (In re Borin, p. 241), in which a workman in a dye house sought to open windows that were nailed down, obviously for the purpose of preventing such opening, the court holding that the nailing was a plain notice of intent, and that in violating such notice the workman was engaged in an undertaking outside of his duties. Where, however, the extraneous undertaking is related to a duty, the injury may be held to be within the terms of the act, as in the case of a boiler tender whose duty it was to read a steam gauge, and while attempting to do so found his way obstructed by some heavy beams and undertook to remove them, suffering injury as a consequence (Manning . Pomerene, p. 247). The Supreme Court of Nebraska held in this case that pain and nausea were sufficient objective symptoms of an injury to warrant its classification as an accident.

When the injury is due, not to the employment but to the physical condition of the workman, it can not be said to arise out of the employment, even though occurring in its course. This is the pronouncement of the Supreme Court of Michigan in a case (Van Gorder v. Packard Motor Car Co., p. 244), in which a workman was fatally injured in a fall from a scaffold about 6 feet from the floor, the fall being due to an epileptic fit. The Supreme Court of California announced a like conclusion in a case of practically identical circumstances not reproduced (Brooker v. Industrial Accident Commission, 168 Pac. 126).

The point of time at which the status of employee terminates was the essential element in a decision by the Supreme Court of Massachusetts (In re O'Brien, p. 244), in which an employee fell from a stairway while leaving the place of his employment. The court ruled that the circumstances warranted the presumption that such an accident was a reasonable probability, so that it could be regarded as having occurred in the course of employment and as a risk and hazard of the business. An extension of the same doctrine led the Supreme Court of Connecticut to award compensation in the case of a man who was killed while being transported from the place of his work to his home, transportation charges being provided by the employer in addition to the regular wages, and an arrangement made by which one of the employees received the transportation money directly from the employers to carry the men back and forth in his automobile (Swanson v. Latham & Crane, p. 249). The Supreme Court of California decided (Atolia Mining Co. v. Industrial Accident Commission, p. 246) that a shotfirer who left the mine after laying the fuses

and returned some 20 minutes later to remedy the conditions due to the supposed failure of two charges to explode was still within the employment when he was shot by a watchman on his return from this visit of inspection. In spite of the fact that the shooting was unjustifiable and reckless, it was still held to be within the scope of the watchman's duties, not being an intentional or premeditated assault, so that the injured man had suffered from conditions created by his employer, and the injury was an incident of such conditions.

That the employment status did not exist at the time of the injury, or rather that the injury did not arise out of the employment, was the conclusion of the Supreme Court of New York in a case in which a contractor's employee went to a part of a building distinct from the working place of his employer for the purpose of there eating his lunch (Manor v. Pennington, p. 242). The Appellate Court of Indiana likewise (Inland Steel Co. v. Lambert, p. 252), held that a switchman was not injured in the course of his employment when, after having quit work, he changed his working clothes for street clothes and started to deposit a time card; while on the way he attempted to go upon a moving engine that would carry him to his destination without compelling him to make a detour on account of an excavation that interrupted his usual walk. An award in his favor was reversed, the court saying that the act of attempting to board the car was not within the duties of his employment, but was an act only for his own convenience, characterizing it as an unnecessary attempt to do a perilous act, so that the injury did not arise out of the employment. Somewhat in contrast with the foregoing was the action of the Supreme Court of New Jersey in holding (Kolasynski v. Klie, p. 241), that a domestic servant fatally injured while lighting a fire with alcohol in disobedience of orders not to use kerosene "or anything like that," was, notwithstanding, injured by an accident arising out of and in the course of employment.

The circumstances under which the injury is received may be such that whether or not the injury comes within the description of the phrase under consideration can only be inferred. Thus, where a carpenter was working on the top of a car upon which were iron frames, near the end of an uninsulated live cable, and the first information as to the injury was derived by seeing the workman fall, the Supreme Court of Illinois held that there was sufficient evidence of accidental injury arising out of and in course of employment to sustain an award, even though there could not be an actual demonstration of all that took place (Bloomington, D. & C. R. Co. v. Industrial Board, p. 243). Likewise favorable to the claimant was a decision of the Supreme Court of New York (Chludzinski v. Standard Oil Co., p. 248), in a case in which a workman was

burned to death by his flannel shirt catching fire in a locker room in which was a lighted Bunsen burner, the injured man being alone in the room at the time when he received the injury. The Supreme Court of Illinois held the presumption to be in favor of the claim made in connection with the death of a night watchman who was apparently assaulted with an iron pipe by some unknown person (Ohio Building Safety Vault Co. e. Industrial Board, p. 249). The court held that the nature of his employment made his assault by trespassers a possibility, so that an injury of this nature would be classed as a hazard of his work.

WILLFUL MISCONDUCT.

A district court of appeals of California held (Pacific Coast Casualty Co. v. Pillsbury, p. 292) that a messenger boy who undertook to operate a freight elevator in violation of specific orders not to do so, notice to that effect also being posted, was excluded from the benefits of the law because of willful misconduct. With this may be noted the action of the Supreme Court of Rhode Island affirming a decree denying compensation where it was clear that the death of an employee was due to his intoxication, the claimant's husband being drowned while attempting to come ashore from a dredge where he was employed as a watchman, to secure an additional supply of liquor (Collins v. Cole, p. 269).

Where the employer is found guilty of serious and willful misconduct, the law of Massachusetts permits a double award. In Riley . Standard Accident Insurance Co. (p. 286), the supreme court of that State reversed a finding of such a penal award made against an employer on the ground that he had maintained an elevator in such a state of disrepair as to make him guilty of willful misconduct. The court held that negligence, even though gross or culpable, will not be classed as serious and willful misconduct under the act, since the idea involved is one rather of intentional wrongdoing with a wanton and reckless disregard of its probable consequences. The Ohio statute proceeds on a different principle, and allows a suit for damages instead of an action under the compensation law where an employer fails to comply with any lawful requirement for the welfare of his employees. An appellate court affirmed a judgment in a case (American Woodenware Mfg. Co. v. Schorling, p. 286) in which the supreme court found only common-law negligence, and reversed the courts below. The matter of failing to comply with a lawful regulation was held to be limited under the act to disobedience to specific orders or requirements of the industrial commission of the State, or definite provisions of laws and ordinances; so that the mere neglect to maintain a safe place along lines of common-law definitions could not be regarded as making the employer liable in damages instead of under the compensation law.

LIABILITY OF THIRD PARTIES.

It is a common provision of the statutes that where the injury is due to the negligence of a third party the injured employee may sue him or take his compensation from his employer at his own option. In the latter case the employer has recourse against the third person for recoupment, but no excess recovery may be maintained by him for his personal benefit. A United States circuit court of appeals construed the Nebraska law in a case of this nature (Otis Elevator Co. v. Miller & Paine, p. 256), in which settlement had been made by the employer under the provisions of the compensation law of the State. On the employer's suit against the third party a larger recovery was made than the total of the award. The third party's contention that it should have been permitted to show that the employer's negligence concurred in producing the injury was denied, the court holding that under the law the employer's responsibility was positively fixed without regard to questions of its negligence, and that it was entitled to a subrogation to the rights of the injured man or his dependents in proceeding against the culpable third party. Payments made by the employer on account of the compensation award, and the expense of the prosecution of the suit, were held to be proper deductions from the judgment recovered, the balance to go to the dependents of the deceased workman.

Where all the parties are under the compensation law, the Illinois statute provides for recovery of compensation from the employer, the latter being then subrogated to the rights of the employee to the extent of recovery from the third party of the amount paid as compensation. An injured man's suit against the third party was therefore held by the supreme court of the State to necessarily fail in a case where this condition controlled, even though there was a possibility of a larger recovery in such a suit (Friebel v. Chicago City Ry. Co., p. 255). It was pointed out that while the employee might be a financial gainer if he had elected not to come under the compensation law, he was at least protected by a double recourse for a limited recovery under the law, so that he could not be regarded as unconstitutionally deprived of his rights. The Kentucky statute varies from the more common methods of procedure in permitting the employee to claim compensation from his employer or proceed against the third party, or to secure redress from both by concurrent or successive actions, though double recovery can not be had. In Book v. City of Henderson (p. 258), the injured man first secured a compensation award and then sued the third party for damages, making his employer a party to the suit. Such a step was held by the court of appeals of the State to be proper, and if the employer would interplead, any amount recovered from the third

party would be properly distributed between the two suitors, the employer's recovery being limited to his compensation payments, but the employee being entitled to any amount in damages recovered without regard to the awards provided in the compensation law.

Where a third party was sued and judgment recovered an appeal was taken and the defense set up that the widow of the injured man, the employer, and the insurer, were parties to a contract by which it was provided that the widow was to sue, and if she recovered $3,000 or more was to receive no compensation, but if she received less than $3,000 the deficit was to be made up to her. The third party defendant in this case contended that this agreement amounted to an election of the compensation remedy, but the court held the agree ment void, and the judgment was affirmed (Detloff v. Hammond, Standish & Co., p. 254).

A peculiar condition was involved in the case, Dietz v. Solomonwitz (p. 253), passed upon by the supreme court of New York. The claimant had been assaulted by strikers, and was awarded compensation, assigning his right to sue for damages to the person or institution which should be liable to make the compensation payments. In the meantime criminal prosecutions were had against the assailants, and they were sentenced to imprisonment, sentence being suspended on condition of good behavior and the payment of certain sums to the injured man. The industrial commission had refused to make any allowance for these payments in awarding compensation, but the court directed that the amounts thus paid should be deducted from the compensation benefits.

DEPENDENCE.

The Supreme Court of Illinois held (H. G. Goelitz Co. v. Industrial Board, p. 207) that the rights of a widow to compensation were based on the legal obligation of the husband to support her, and not upon cohabitation or actual dependence. In this case the husband had been separated for a number of years, and he had lived illicitly with another woman, but it was held that his unfaithfulness, while warranting the wife's living apart, did not invalidate her claim, the Illinois statute not requiring that the husband and wife must be living together at the time of the injury. On the other hand, a wife remaining in a foreign country on a farm operated by a hired man, and receiving some funds from her son in this country, was held by the Supreme Court of Massachusetts not to be dependent upon her husLand who had been a few months in America, and had sent her nothing, but intended to have her come to this country later on (In re Gorski, p. 223); but where remittances were regularly made of an amount that would afford only partial support, the Supreme Court of Michigan (Kalcie v. Newport Mining Co., p. 223), approved an award