Condition due to medical treatment

severely injured. In the ordinary course the hand would have been amputated, but the surgeon endeavored to save the hand by thoroughly cleansing the wound. This being very painful, an anesthetic was administered, and this operation, which was described as a "bold experiment" was successful, but two months after the first operation, in order to prevent contraction, which would have rendered the hand rigid and practically useless, it became necessary to graft some skin on the hand. This operation being painful, though not dangerous, an anesthetic was again administered, and the man died under it. It was held that death resulted from the original injury and the widow was entitled to compensation. Shirt v. The Calico Printers' Ass'n (1909), 100 L. T. 740; 2 B. W. C. C. 342.

A workman suffered from adhesions in an injured arm. His employers asked him to undergo an operation for the breaking down of the adhesions. This he refused, and on the application of the employers the compensation was terminated, as it was held that the workman was no longer incapacitated by reason of the accident. Wheeler Ridley & Co. v. Dawson (1912), 5 B. W. C. C. 645.

Blood poisoning through use of a hypodermic needle is an accident. Bailey v. Interstate Cas. Co., 8 App. Div. 127; 40 N. Y. Supp. 513; aff'd. 158 N. Y. 723; 53 N. E. Rep. 1123.

Pneumonia following an operation necessitated by the employé's injury, was the immediate proximate cause of death, and it was held that this was a personal injury which entitled the employé's widow to compensation. Raymond v. United States Casualty Co., Mass. Indus. Acc. Bd.

An employé whose leg had been broken by reason of an accident was taken to a hospital by other employés, over his objection, but it was not shown that the employer authorized this action or employed the physician. It was held that the master was not liable for the negligent treatment by the physician in the public hospital. (E. L.) Allegar v. American Car & Foundry Co., 206 Fed. Rep. 437.

Refusal of workman to permit operation to be performed 26. Refusal of workman to permit operation to be performed.1

Incapacity may none the less result from an injury, should the workman refuse to undergo a surgical operation, which, although attended with risk, would probably be successful. Rothwell v. Davies (1903), 5 W. C. C. 141.

A workman was injured at one o'clock in the afternoon on February 14, 1913. He could not speak English and communication was had with him through an interpreter. The physician diagnosed the injury as probable rupture of the intestine and advised an operation. When this was communicated to the workman through the interpreter the injured man shook his head indicating a refusal to have the operation performed. The next morning at about 11:30 the physician again advised the operation and the workman then consented and the operation was performed at about 1:30 on February 15. The operation disclosed a rupture of the intestine which was sutured. During the operation the patient vomited and some of the vomit was drawn into the lungs causing pneumonia and resulting in his death a few days later. The post-mortem examination showed that the intestine was in process of healing at the time of death. The employer contested the payment of compensation on the ground of the refusal of the workman to be operated on when the physician first advised such an operation. The Board, however, held that it was by no means certain that an earlier operation would have saved the life of the workman, nor was it certain that the operation performed would not have resulted in his recovery were it not for the other complications which appeared in the case, and compensation was awarded. Detroit Steel Products Co. v. Jendrus, Mich. Indus. Acc. Bd., June, 1913.

A somewhat different ruling was made under the New Jersey Act in the case of John McNally v. Hudson and

1 See Chapter XII, Art. B, paragraph 8 for discussion of case of increased period of disability due to failure to follow physician's instructions.

Breaking artificial leg

Manhattan R. Co. (Hudson Common Pleas, December, 1913), 000 N. J. Law J. 000. In this case the workman's hips were crushed by being caught between two cars. The physician advised that a resulting rupture could probably be cured in six months by an operation, which he recommended, and which would be attended with some danger to the workman's life. The workman refused to undergo the operation. The court limited the compensation to six months, although the disability continued a longer time, because of the refusal of the workman to permit the operation to be performed.

27. Vaccination by order of superior.

An employé obeying orders of his superior and submitting to an operation (vaccination), ordinarily harmless, who is disabled thereby, is injured within the meaning of the Federal Act and is entitled to compensation. Re C. B. Flora, Op. Sol. Dep. C. & L., p. 188.

28. Disease contracted in hospital after accidental injury. Applicant's husband died of tonsilitis contracted during an epidemic in a hospital ward, where he had been taken because of injuries suffered while he was working as a street cleaner. The injury was caused by a fall, the head of the deceased striking the stone curbing. It was held that the applicant was entitled to compensation. Keehan v. City of Milwaukee, Wis. Indus. Acc. Bd., Sept. 6, 1912.

Where a porter in a fever hospital contracted scarlet fever but it did not appear when or where the disease was contracted, it was held that the accident did not arise out of the employment and compensation was refused. Martin v. Manchester Corporation (1912), 5 B. W. C. C. 259.

29. Breaking artificial leg.

The breaking of an artificial leg is not an injury covered by the statute. Re Eulogio Rodriguez, Op. Sol. Dep. C. &

Distinction between "arising out of" and "in course of"

L. p. 189. It is difficult to believe that such a claim would be made seriously. But it apparently was pressed to the point where the opinion of the Solicitor of the Department was requested.

30. Death not natural or probable consequence of injury. Where death results from injury dependents can recover although death may not have been the natural or probable consequences of the particular injury. Dunham v. Clare (1902), 66 L. T. 751; 4 W. C. C. 102.

ARTICLE C-WHEN DOES AN INJURY "ARISE OUT OF" OR IN "THE COURSE OF" THE EMPLOYMENT?

1. In general; distinction between terms " arising out of " and "in the course of."

Some of the compensation statutes provide that a workman is entitled to compensation when he receives an injury arising out of and in the course of his employment." Others, such as the Federal law, applying to certain Governmental employés, for example, provide that he is entitled to compensation when he receives an injury "in the course of his employment" merely. The distinction is important. A few statutes contain phraseology that is somewhat different, but the meaning is the same, substantially.

The phrase "arising out of and in the course of his employment" has a double meaning. Or, more properly speaking, there are two conditions attached to it. The accident must "arise out of" the employment, as well as "in the course of" the employment. Thus where a workman during the course of the employment does something entirely foreign to the work which he is employed to do (playing a practical joke, for example) whereby he is injured, this accident could be said to have occurred "during the course of" the employment, but it could not be said to "arise out of" the employment, because the workman was not doing anything which he was employed to do when the accident happened. The

Distinction between "arising out of" and "in course of" distinction in terms is illustrated in two recent British cases. Thus a canal overseer employed by a railway company, was returning to his office after having been, in the course of his duties, to a railway station. He took a short cut along the line instead of going around by the road, which was the proper way. He was killed by a passing train. It was held that the accident arose "in the course of," but not "out of," the employment, and compensation was refused. M'Laren et al. v. Caledonian Railway Co. (1911), 48 Sc. L. R. 885; 5 B. W. C. C. 492. A herder employed on two farms usually went from his home to the farms on a bicycle, with the sanction of his employer. He was setting out on his bicycle to go to one of the farms, when his own dog got in the way and upset him. It was held that the accident arose in the course of, but not out of, the employment, and compensation was refused. Greene v. Shaw (1911), 46 Ir. L. T. 18; 5 B. W. C. C. 573.

The question has been discussed recently in Massachusetts in a case where a claim was made for compensation for injuries which were the result of an assault by a drunken coemploye. In that State the Compensation Act contains both of the conditions which are found in the British Act and in most of the American statutes. On this point the Massachusetts court said:

"The first question is whether the deceased received an 'injury arising out of and in the course of his employment', within the meaning of these words in Part II, § 1 of the Act. In order that there may be recovery the injury must both arise out of and also be received in the course of the employment. Neither alone is enough.

"It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the Act and with precision exclude those outside its terms. It is sufficient to say that an injury is received 'in the course of' the employment when it comes while the workman is doing