intention of the legislature, it would not have used the terms "farm. dairy, agricultural, viticultural, or horticultural labor," for "farm labor" would, in the broad sense, include labor engaged in dairying, agriculture, horticulture, stock raising, and poultry raising and anything which can be defined as cultivation of the soil. (19 Cyc. 456: 2 C. J. 988.) The very wording of the clause of the act upon which petitioner relies shows that the legislature was giving a restricted meaning to the term employed and was segregating into certain definite and exclusive classes all kinds of "labor" which, in the broad and unrestricted sense, would come under the head of farming. "Farm labor" must, we think, be taken in its ordinarily accepted meaning as labor engaged in the production of hay, grain, vegetables, and the like by the tillage of the soil.

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WORKMEN'S COMPENSATION-AGRICULTURAL LABOR-ICE HARVESTING-EMPLOYMENT FOR PECUNIARY GAIN-Mullen v. Little, Supreme Court of New York, Appellate Division, Third Department (Jan, S. 1919), 173 New York Supplement, page 578.—Mullen was employed by Little as a farm laborer and was engaged at the time of the injury in unloading ice from a sleigh into an ice house by means of a skid. The skid was a makeshift affair and was too long, so that when ice slid over it the end which rested on the sleigh flew up into the air as the ice left the end inside the ice house. A piece of ice became wedged in the doorway and Mullen attempted to release it with his foot. When the piece became disengaged the skid flew up into the air and threw Mullen into the ice house injuring him. He was awarded judgment in the lower court, and on appeal the decision was reversed because Mullen was deemed guilty of negligence. In reply to Mullen's plea that the compensation law applied and therefore proof of negligence was no bar to recovery, the court said:

The plaintiff urges that the question of contributory negligence is eliminated, for the reason that the case falls within the workmen's compensation law (Consol. Laws, c. 67), and, if so, section 11 makes that question unimportant. Ice harvesting is a hazardous employment under that act. but such employment was not in this instance "carried on by the employer for pecuniary gain." within the meaning of the statute (sec. 3, subd. 5). The plaintiff was in reality a farm laborer (sec. 3. subd. 4), and the ice was being stored for use on the farm, and only as incidental to farm purposes. Hence the case is not within the act.

WORKMEN'S COMPENSATION AGRICULTURAL LABOR-THRESHING MACHINES-Jones et al. v. Industrial Commission of Utah et al, Supreme Court of Utah (Jan. 30, 1920), 187 Pacific Reporter, page 833.-The appellant Jones and a number of other farmers together purchased a threshing machine and employed Rowley to assist in

operating it. The machine was purchased primarily for the purpose of threshing the crops of the owners. While the machine was being used to thresh the crop of a son and renter of one of the owners, Rowley was so injured that he died.

The owners of the threshing machine had not elected to come under the compensation law at the time of the accident. Afterwards, acting upon legal advice, they procured insurance under the industrial act and engaged in custom work during the remainder of the season. The industrial commission held that inasmuch as the work being done at the time of the injury was for a nonowner the machine was being used for commercial threshing and that Rowley was not an agricultural laborer such as to exclude his dependents from compensation under the workmen's compensation act. An award for compensation was accordingly made. The owners appealed and the award was annulled. The decision is in part as follows:

The statute expressly excludes from its operation "agricultural laborers and domestic servants." (Compensation Laws, section 3111, as amended in Session Laws 1919, page 156.)

The number of adjudicated cases respecting questions analogous to the one here presented is exceedingly limited. This should not be a matter of wonder when we consider that workmen's compensation laws are, in most cases, of comparatively recent origin. We have found no case substantially identical in its facts with the present case. The nearest analogy we have been able to find are cases in which threshing machines or other farm machinery have been devoted entirely to custom work for the community, instead of being used principally on the crops of those who own the machine. Even as to those cases there is a marked conflict among the authorities. Some of the cases hold that when a farm machine, such as a hay baler, corn shredder, or threshing machine, is used even for custom work, the business is farm work, and the employees employed thereon are farm laborers. Other cases take the contrary view. We find no case whatever which holds that the work is not farming, and the employees not farm laborers, where the machine is used primarily by the owners for use on their own farms.

In the instant case we need not go to the full extent to which the Supreme Courts of Minnesota and Iowa and the Industrial Accident Commission of California have gone, for, as manifestly appears, the employers in all of those cases were engaged in custom work for the farmers of the community, or, as our own industrial board calls it. "commercial business." There is no pretense that owners of the machine in the cases referred to purchased the same primarily for their own use as farmers, or that they were owners of farms upon which the machines could be used. Notwithstanding this the courts and commissions referred to held that they were engaged in farming business and their employees farm laborers.

We hold, however, that in the case at bar, the commission itself having found that the owners of the machine purchased the same primarily for the purpose of threshing their own grain and used it principally for that purpose, such primary purpose becomes con

trolling in determining the nature and character of their business within the meaning of the industrial act.

For the reasons stated the findings, conclusions, and award made by the defendant commission are set aside and annulled.

WORKMEN'S COMPENSATION-ATTORNEY'S FEES-EFFECT OF CONTRACT-Rawlings v. Workmen's Compensation Board, Court of Appeals of Kentucky (Mar. 2, 1920), 218 Southwestern Reporter, page 985.-Rawlings, an attorney at law, was employed without solicitation of the business on his part, by Maxwell and four others to represent them before the workmen's compensation board in proceedings for compensation. He made a written contract with each of the five employees for a fee within the statutory limits as allowed under section 4942 of the Kentucky statutes, which is as follows:

All fees of attorneys and physicians and charges of hospitals under this act shall be, subject to the approval of the board. No attorney's fees shall be allowed or approved against any party or parties not represented by such attorney nor exceeding an amount equal to 15 per cent of the amount of the first $1,000 or fraction thereof recovered, or 10 per cent of the excess of such recovery, if any, over $1,000. The board may deny or reduce the attorney's fee upon proof of solicitation of employment.

In granting the employees their awards the board refused to grant Rawlings the fee fixed by the contracts, but awarded him a materially reduced sum. He sued for a writ of mandamus against the board to compel the payment of the contract fee. Judgment was rendered for the board, and he appealed. In affirming the decision the court of appeals said in part:

Our construction of this section is that the board in the exercise of a sound discretion and after a careful consideration and understanding of the facts and circumstances may reduce the contract compensation agreed to be paid an attorney, although it does not exceed the statutory amount or there be any evidence that the employment was solicited and, of course, if no contract was entered into between the attorney and the client, would likewise have the power to fix the fee at a reasonable sum.

We think the legislature intended in this section: (1) To limit the fees that attorneys might have; (2) to give to the board the power to reduce the fee below the statutory limit, even when it was agreed to by contract, and (3) to deny altogether the fee if it should appear the employment was solicited. The whole purpose and intention of the act was to lodge large power and discretion in the board, except in cases where the powers were specifically described by the statute. We are also of the opinion that the remedy of an attorney who feels himself aggrieved by the action of the board in allowing a smaller fee than he considers himself entitled to have is by appeal from the action of the board to the circuit court. Where a party has

an adequate remedy by appeal it is well settled that mandamus will not lie.

WORKMEN'S COMPENSATION-ATTORNEY'S FEES-RECOVERY OF COMPENSATION Johanson v. Lundin Bros. et al., Supreme Court of Minnesota (Dec. 19, 1919), 175 Northwestern Reporter, page 302.— Johanson was injured while in the employ of Lundin Bros. In settlement of compensation the employer agreed to pay Johanson $11 per week until his disability should cease. This agreement was approved by the district court. Payments were discontinued on March 6, 1917, because as the employer stated Johanson had recovered from his disability. Johanson's attorney secured an order to show cause and a hearing was had thereon, wherein a receipt for $22, dated April 20, 1917, and signed by Johanson, releasing the company from all further liability for the payment of compensation was produced. The attorney then asked leave to file his application for attorney's fees, which was granted. Thereafter proceedings were had on the application, and it was disallowed upon the ground that he was not entitled to recover attorney's fees under the workmen's compensation act. The court declared that attorney's fees are not allowed in ordinary civil actions and can be allowed only when authorized by

statute.

WORKMEN'S COMPENSATION-AWARD-BASIS-AVERAGE WEEKLY WAGES-Remo v. Skenandoa Cotton Co. et al., Supreme Court of New York, Appellate Division, Third Department (Nov. 12, 1919), 179 New York Supplement, page 46.-Remo was injured by an accident arising out of and in the course of his employment with the cotton company, and upon bringing the proper proceedings he was awarded compensation under the workmen's compensation act. The award was based on an average weekly wage computed according to subdivisions 1 and 2 of section 14 of the workmen's compensation act (Consol. Laws, ch. 67), which provide that the average weekly wages of an employee who works at the same occupation for a year shall be arrived at by multiplying the daily wage by 300 and dividing by 52. Remo worked at night, 12 hours per day or 60 hours per week, but he only worked five nights a week. The employer and its insurance carrier appealed from the award, declaring that the average weekly wages were incorrectly computed. They state that as Remo had worked only five days a week his average weekly wages should have been computed according to subdivisions 3 and 4 of section 14 of the act. The employer submitted a statement showing Remo's actual earnings plus a 12 per cent bonus which the company allowed its employees to have amounted to $826 for the year preced

ing the injury. This statement was undisputed. The court adopted the employer's view of the matter and ordered the award modified, saying in part:

According to the statement, the correctness of which is undisputed, the claimant earned, during the year prior to the accident, with bonus figured in, the sum of $826, which, divided by 52, made an average weekly wage of $15.89. As the claimant regularly worked no more than 5 days a week, the methods of calculation given in subdivisions 1 and 2 of section 14 of the workmen's compensation law could "not reasonably and fairly be applied." Therefore the provisions of subdivisions 3 and 4 of that section, which require that the sum which "shall reasonably represent the annual earning capacity" be taken as a basis, and divided by 52, to determine the average weekly wages, became applicable. As said in Matter of Littler v. Fuller Co., 223 N. Y. 369, 119 N. E. 554:

"If the nature of the employment does not permit steady work during substantially the whole of the year, the annual earning capacity of the injured employee in the employment is the proper basis of compensation. (Section 14, subd. 3.) The true test is this: What were the average weekly earnings, regard being had to the known and recognized incidents of the employment, including the element of discontinuousness?"

Since the actual annual earning capacity of the injured employes was $826, and his weekly wages were $15.88, the amount which should have been allowed to the claimant was two-thirds thereof, or the sum of $10.59 per week for 244 weeks.

The award should be modified accordingly. All concur.

WORKMEN'S COMPENSATION-AWARD-BASIS-BOARD-Picanardi v. Emerson Hotel Co., Court of Appeals of Maryland (Nov. 13, 1919), 108 Atlantic Reporter, page 483.-The appellant, Picanardi, was employed by the defendant as a baker at a wage of $50 per month and board. While engaged at his work he got his hand caught in a bread mixer and injured, resulting in a permanent partial disability. The State industrial accident commission awarded him compensation without, however, taking into consideration in the computation of the weekly amount to be paid, the value of the board which he received in part payment for his services. He appealed to the Baltimore city court and from that court to the court of appeals, but in each case the award was affirmed on the ground that the money value of the board not having been fixed at the time of the hiring the board could not be regarded as part of the wages. The opinion was rendered by Judge Burke, who quoted with approval from the opinion in the court below in part as follows:

I can only repeat that I think we are not permitted to suppose that the legislature meant to have the funds provided to pay losses calculated upon a smaller basis than that allowed for the calculation