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the damages were excessive. The court affirmed the decision, citing many decisions relative to interstate commerce, and continuing:

Applying these principles and noting the clearly settled distinction, it is obvious that the coal in question at the time of the plaintiff's injury had not become an instrumentality of interstate commerce, and therefore the plaintiff was not employed in that commerce. He was at work assisting in the removal of coal in bulk from the hold to the cars of the consignee or to the general pile on the wharf. No part of it had been appropriated or segregated for interstate use. It might be used for that purpose, or it might be used for intrastate locomotives or for both. At some time in the future some other employee if engaged in coaling an interstate engine from some portion of the stock would be within the act, as in Armbruster v. Chicago etc. Ry. Co., 166 Iowa, 176, 147 N. W. 337, before cited, but that time had not arrived and the plaintiff's work was no more directly and immediately connected with and a substantial incident of interstate commerce than that of a workman loading a railroad car at the mines. The cases so hold.

As the Federal employers' liability act is not involved, the plaintiff has a right of action at common law aided by R. S. c. 50, the workinen's compensation act, so called. The defendant is not an assenting employer, and employs more than five workmen, so that it is deprived of the defenses of contributory negligence, negligence of a fellow servant, and assumption of risk.

The jury found negligence on the part of the defendant, and it is the opinion of the court that their verdict on this point is not so manifestly wrong as to require intervention. The plaintiff was set at work by McDonough without any instructions or warnings whatThis is admitted by the foreman, who also testifies that the other workmen had been instructed by his predecessor. And the plaintiff had not worked sufficiently long to gain the necessary knowledge by experience.

The verdict was $9,120.75. The plaintiff is 41 years old. The injury consisted of two broken bones of the ankle, the astragalus and the cuboid, with an apparent crushing just below the ankle. Effort was made to avoid amputation, but gangrene set in, and on September 3 the leg was amputated above the ankle. The plaintiff now wears an artificial limb, and his physician testifies that he is and always will be incapable of hard physical labor. Yet he knows no other kind. Lack of education prevents his filling a clerical position, and he must rely for support upon his seriously diminished capacity as a common laborer. His wages at the time of the accident were 56 cents per hour, with 75 cents for overtime. His physical suffering was at times intense. Upon this question of damages the defendant offered no testimony. From the very nature of the case the injury spoke for itself.

After studying the evidence and the situation carefully, and considering all the elements which enter into it, it is the opinion of the court that the damages, although large, are not grossly excessive.

WORKMEN'S COMPENSATION-ELECTION-WRITTEN ACCEPTANCETEMPORARY SUSPENSION OF WORK-McCune v. Wm. B. Pell & Bro., Court of Appeals of Kentucky (June 14, 1921), 232 Southwestern Reporter, page 43.-Richard McCune, a painter by occupation, had worked at times during an interval of 10 years for Wm. B. Pell & Bro. On May 14, 1917, upon again beginning work for defendants as a painter, he elected to work under the workmen's compensation act and signed the employers' "compensation register declaring such election and purpose." He left his employment on July 13, 1917, and for 16 months continuously thereafter was employed in another State. Upon his return to Kentucky he was employed again by Wm. B. Pell & Bro. under a new contract, different as to the amount of wages from the previous contract, and without then or at any time. thereafter signing the "compensation register." While working under this latter contract he fell from a scaffold and was killed. His widow petitioned for compensation for the death of her husband. The workmen's compensation board refused compensation and the circuit court affirmed their action in dismissing the petition, from which decision the claimant appealed. The court of appeals affirmed the judgment of the lower court, and adopted quotations from the opinion of the circuit court as part of its own opinion, some of which are as follows:

It is clear that the constitutionality of the present compensation act is based upon the facts that the acceptance of the act is, under its terms, a purely voluntary matter of election by the employer and employee, and that each and all of the provisions of the act become effective and binding upon employer and employee solely through this voluntary acceptance, which, in effect, when made by both, becomes an agreement or contract between the parties. Without this acceptance by both employer and employee, the act can not, nor can any of its provisions, apply to either.

After the election has been made by both, there are but two methods of withdrawing the election. One is the method provided for in the act itself (section 76), that is, by the written notice therein mentioned, which evidently, so far as the employee is concerned, contemplates the continuance of the relation of employer and employee. The other method is the one that necessarily grows out of the constitutional right of the parties to sever their relation of employer and employee. As the act applies only to those who occupy the relation of employer and employee, it necessarily follows, therefore, that when that relation ceases to exist the act ceases to apply, except in so far as may be necessary to enforce the rights thereof acquired under the act.

He [McCune] could accept the act only in the manner provided by the statute. Neither the act nor any other law of this State gave to him or to the employer any right to waive that important provision of the statute. Therefore any agreement between the parties that their former signatures should be considered as an acceptance under

the last employment was an absolute nullity, and can have no effect in the case. If the requirement of the statute could be waived by an oral agreement in this case, then it could be waived in any other case, and the purpose of the statute concerning the preservation of this important evidence would be destroyed.

WORKMEN'S COMPENSATION-ELECTION OF REMEDIES BEFORE INJURY-CONSTITUTIONALITY-Industrial Commission et al. v. Crisman, Supreme Court of Arizona (July 18, 1921), 199 Pacific Reporter, page 390.-James L. Crisman brought an action as a taxpayer to restrain the industrial commission and others from putting into operation the workmen's compensation act of 1921, upon the ground that it violates the State constitution in requiring the employee to elect, before he is injured, whether he will accept compensation under said act or not. An injunction was issued enjoining defendants from putting the act into operation. From this judgment the defendants appealed. The supreme court affirmed the action of the lower court because of section 8 of article, 18 of the constitution which reads: The Legislature shall enact a workmen's compulsory compensation law *by which compulsory compensation shall be required to be paid to any such workman by his employer. * vided. That it shall be optional with said employee to settle for such compensation, or retain the right to sue said employer as provided by this constitution.

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Section 90 of the compensation act of 1921 provides that if section 60, requiring the employee to elect his remedy before injury, should be held invalid or unconstitutional, the entire act and every section thereof should be invalidated. Chief Justice Ross in his opinion said in part:

We realize that, if the employee may not be required to elect his remedy before injury, it is not possible for the legislature to pass a compensation law such as exists in nearly every State in the Union. If he is permitted by the constitution to postpone his election until after injury, and then elect to settle for compensation or retain his right to sue the employer for negligence, or under the employers' liability law (Civ. Code 1913, pars. 3153-3162), it is not a substitutionary remedy, but an additional remedy.

We have, however, come to the conclusion that the decision in the Ujack case [15 Ariz. 382, 139 Pac. 465] is sound; that, as therein. stated, the employee may await his injury and then determine if he will accept compensation or retain the right to sue his employer, and that this right of choice is a constitutional right-one the legislature can not take away from him by requiring that he elect his remedy before injury.

Judge Baker (concurring) in his opinion declared:

I can not refrain from saying that it seems regrettable that, owing to its constitutional restrictions, Arizona is barred from adopting

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a just and humane compensation law, such as exists in 43 or 44 States of the Union.

Criticising the liability law as tending to increase the evils which แ an equitable and just compensation law is well calculated to cure," Judge Baker continued:

While it is unfortunate that the evils referred to must continue to exist and flourish, it is not our function to provide a remedy by judicial legislation. The remedy lies with the people. Both California and New York were compelled to amend their constitutions before they were able to adopt beneficial compensation laws.

Judge McAlister (concurring) also wrote an opinion stating his views, part of which is as follows:

To my mind it is clear that the optional provision in section 8, art. 18, was placed there entirely for the benefit of the injured employee. It was intended to preserve his right to elect his remedy at a time when he could do it to his best advantage. If such construction renders it impossible to enact in this State a compensation law in the true sense of that term, my answer is that the fundamental law is our guide, and where it leads it is the duty of the court to follow. Whatever the consequences may be, the court has no alternative other than to give effect to its plain mandates, and, if this stands in the way of the enactment of a compensation law in harmony with those in other States and it is thought best to have one of that kind, the appeal to remove the barrier should be to the people who made the constitution, and can remake it, and not to the courts, which possess only the power to construe it. I am convinced, therefore, that the act is invalid because it deprives employees of their constitutional right to choose after injury between compensation and other remedies; and. since it is provided in the act itself that in case the election before injury provision can not stand the whole shall fail, I concur in the opinion of the chief justice that the judgment of the trial court should be affirmed

WORKMEN'S COMPENSATION-EMPLOYEE-AGRICULTURAL WORKERCONTRACT OF HIRING-Matis v. Schaeffer et al., Supreme Court of Pennsylvania (March 28, 1921), 113 Atlantic Reporter, page 64.— The decedent, Matis, was employed as a laborer by Schaeffer to work in his coal yard. Schaeffer also maintained a small farm on which he raised food for his horses used in the coal business. When work became slack at the coal yard it was customary to send the men to the farm to do whatever work was necessary. Matis was sent during a dull period at the coal yard to work on the farm. While at the farm and engaged in pitching oats he suffered from sunstroke and died. His widow brought proceedings for compensation under the workmen's compensation act and secured an award. Upon appeal to the court of common pleas on the ground that Matis's work having been agricultural labor he was not at the time of his injury under the workmen's compensation act, the award was affirmed and the em

ployer appealed again. The decision of the supreme court of the State in again affirming the award is in part as follows:

(1) Was decedent in the course of his employment at the time of the sunstroke? Not much stress is laid upon this, and, indeed, but little could be, for he was at that time and place doing the work which defendant, as his employer, sent him to do. (2) Was he 66 engaged in agriculture" within the meaning of the act of June 3, 1915 (P. L. 777; Pa. St. 1920, sec. 21920), which provides that the workmen's compensation act (Pa. St., sec. 21916 et seq.) shall not "apply to or in any way affect any person who, at the time of injury, is engaged in domestic service or agriculture." The board and court below 'eld that this applied to the general character of the contract of hiring only, and did not refer to other casual or incidental work performed at the request of the employer. We think this conclusion is correct, especially as the title of the act is "a supplement to an act entitled 'the workmen's compensation act of 1915,' to exempt domestic servants and agricultural workers from the provisions thereof." This title must be taken into consideration in determining the scope of the act. It would require a distortion of the plain meaning of the words to call decedent an "agricultural worker" merely because he happened to be doing work which "agricultural workers" ordinarily do. We need only add that the workmen's compensation act covers cases of injury or death from sunstroke. (Lane v. Horn & Hardart Baking Co., 261 Pa. 329, 104 Atl. 615 [Bul. No. 258, p. 156].)

The judgment of the court below is affirmed.

WORKMEN'S COMPENSATION-EMPLOYEE-CITY FIREMEN-Krug v. City of New York, Supreme Court of New York, Appellate Division (March 2, 1921), 186 New York Supplement, page 727.-Oscar Krug was a uniformed fireman of the city of New York attached to engine No. 7 of the city fire department. In May, 1918, while helping to extinguish a fire, he wrenched his knee. He was treated for rheumatism and worked off and on until July, 1919, when he underwent an operation upon his knee. He died from the effect of this operation and his wife brought proceedings for compensation under the workmen's compensation act. The industrial commission allowed her an award but provided that it be held in abeyance because she was receiving a pension from the city fire department pension fund; the award was to be paid only if the pension should fail. The city appealed from this award, and in reversing it a decision was rendered in part as follows:

The amendment of the constitution upon which this class legislation depends expressly authorizes the enactment of the statute:

"Provided that all moneys paid by an employer to his employee or their legal representatives, by reason of the enactment of any of the laws herein authorized, shall be held to be a proper charge in the cost of operating the business of the employer." (State constitution, art. 1, sec. 19.)

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