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Obligation to workman's family

he should become stupidly intoxicated during working hours and injure himself, certainly it might well be urged that no principle of law or morality could be advocated successfully in favor of making it incumbent on the employer to support the workman and his family while he was recovering from the injury. If the employé, being the aggressor, should engage in a fight with another workman and should receive injuries. which incapacitated him, again it could easily be contended that it would be the height of injustice to compel the employer to pay compensation for the injury. Probably no fair minded person will dispute these propositions.

There are other circumstances where equally cogent arguments might, perhaps, be adduced for denying liability for compensation, but as to which there is a conflict of opinion. For example, where a workman, who is not familiar with a particular machine, which is inherently dangerous to operate, is specifically ordered not to touch it, because it can be operated safely only by those who are experienced and expert, disregards such orders and is injured, should his employer be compelled to pay penalty of such disobedience? Naturally the answer is "No; for if any other rule should prevail discipline would be destroyed." Therefore principles have been introduced in some of the statutes denying compensation when the injury is due to "serious and wilful misconduct." Even when no such specific exception has been contained in a particular law, if an employé has been injured while doing something entirely beyond the scope of his duties, or something which he has been specifically ordered not to do, it has been held usually that the injury did not "arise out of the employment" and compensation has been refused. This class of cases, however, is on the border line. There is much conflict in the application of the principle. This lack of uniformity is due to several causes. One of these causes arises from the difficulty of the application of the principle to the facts proved in particular

cases.

Another is the hardship caused to the workman's

Obligation to workman's family

family when serious injury or death is caused by acts on the part of the employé, which, ordinarily, would lead to a denial of compensation. So far as the workman's family is concerned, the hardship is just as great if the wage earner is removed or incapacitated through some act of serious and wilful misconduct, as it would be had the injury or death been caused by the gross negligence of the employer. The employer may well ask, and has asked heretofore successfully: "What has that to do with me?" Considering each employer alone in respect to an individual workman obviously the answer is, "Nothing." But that assumes that the family of a workman is not a part of the industrial system of the State or Nation; that while the industry owes to the workman himself the duty of compensating him for injuries necessarily incident to the occupation in which he is engaged, it owes no separate duty to his family which is based on principles different from those regulating the obligation to the workman himself. Are we sure that this reasoning is entirely sound? If a domestic animal with young is killed by reason of its own viciousness we nevertheless care for the young and do many things which cost time and money to take the place of the parent. Why? Clearly because the young animals are of value to the owner and he hopes to reap a money reward for the additional care he is compelled to bestow on them by reason of the unreasoning misconduct of the parent. Are not widows and young children, in a very much higher degree and on much more humanitarian principles, entitled to the care of the State when the wage earner is removed, even by reason of his own serious and wilful misconduct? "Certainly"; we can anticipate others, as well as employers, saying, "let the State do it." It may be conceded that the answer is logical and that such cases are a charge on the whole community anyway, and must be accepted as such.

But there are many practical and cogent reasons why such an answer is not satisfactory and ought not to be accepted

Obligation to workman's family

without careful consideration. Indeed it has been rejected, in a large measure, in England, and he would be bold who would assent that the basis of the rejection has not been economically sound as well as intensely humanitarian. Under the British Act compensation is denied when the injury is caused by serious and wilful misconduct unless "the injury results in death or serious and permanent disablement." The exception is much more important than the rule. The intent to provide for a workman's family in any event is quite apparent. The British Statute has been the subject of harsh criticism, but Parliament has refused to modify it. Instead of making public charges of the innocent victims (widows and children) of such accidents, it follows the compensation doctrine to its logical conclusion of making each trade bear its own losses. And it considers the loss to the family of the workman as well as that of the workman himself. So, while it may be argued with much force that cases of that character should be cared for by the community at large, the experience in England proves that no real injustice will be done by making this also a part of the burden which must be borne by each industry. The small inequalities which will result from saddling a trade with a risk which is not necessarily incident to that occupation, but is dependent upon the personal qualities of the workmen who happen to be engaged in it at any particular time, will not be so great, in actual experience, as might be imagined from a purely academic discussion. Most important of all, such a plan prevents these innocent victims from the degradation of becoming recipients of public charity. As, ordinarily, such cases inevitably are a charge on all industries of the community, the industries in which they occur would be compelled to pay their share, even though the payments were made directly by the State. In a few isolated cases it may be that the burden will not be so evenly distributed, where each industry is compelled to recognize this obligation to the families of its workmen, as it would be should the obligation

Injuries by third persons

be borne by the community as a whole. But, for the reasons suggested, cases of this kind perhaps ought to be classed as injuries arising out of the occupation, certainly to the extent they are so recognized by the British Compensation Statute.

3. Going to and from place of employment.1

Many questions have arisen and are discussed in detail hereinafter relating to injuries which have occurred while the workmen were on their way to or from the place where their work was to be performed. Generally it has been held that while an employé was on his employer's premises, or while on a conveyance furnished by the employer to convey his workmen to and from the place of employment, the relation of master and servant still subsisted. Decisions to this effect have been made under the common law and employers' liability acts as well as under workmen's compensation statutes. But of course there are many exceptions to the general rule.

4. Injuries by third persons.

In one other respect the compensation acts have greatly broadened the liability of the employer. That is in making the master liable for injuries to a workman when caused by the wrongful act of a stranger away from the employer's premises, provided only the employé was injured while performing duties in the course of his employment. Thus, if a driver of a horse, or of a motor car, is injured by being run down by a street car, while the driver is in the performance of his duties, the employer is liable for compensation even though the owner of the street car may also be liable to the driver for negligently causing the injury. Some of the statutes give the driver an optional remedy in such a case, while others give him the right concurrently to claim com

This subject is fully discussed, post, page 404.

Distinction between "injury" and "accidental injury" pensation from his employer and sue the third person for damages. Usually, however, there is a right of subrogation in one form or another open to the employer.

In cases of intentional assault the liability is not so clear. These questions are discussed in Article C, in this chapter.

5. Employers' liability cases in point; how cited.

So many cases arising under the common law and employers' liability statutes, are in point under the compensation laws, on the question of whether or not an injury is received in the course of the employment, that many of the more modern, as well as some older leading cases, have been cited in the pages which follow in this chapter. That there may be no confusion on the subject, however, the letters (E. L.) in parentheses precede the title to each case which is decided on doctrines or laws other than workmen's compensation statutes.

ARTICLE B.-WHAT IS AN "INJURY" OR AN "ACCIDENTAL INJURY"?

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1. In general; distinction between the word “ injury ” and the term "accidental injury" as found in the various statutes.

As already pointed out, some of the statutes provide for compensation when a workman receives an "injury" in the course of his employment, while others specify an “accidental injury" or an "injury by accident" as the foundation for such a claim. As interpreted by the courts, accident boards, industrial commissions and Federal authorities the distinction seems to be an important one. Speaking generally, it is held, (but not universally) where the word "accident" is omitted, that workmen who suffer from what are known as "occupational diseases" are entitled to compensation. On the other hand, it is decided where the word "accident" is used that those contracting occupational diseases have no claim for compensation. The latter doctrine was established

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