ception no doubt is almost negligible in comparison with the general scope of the act. Even this exception refers to the same class of employment in the neighborhood for the ascertainment of its standard. All our decisions touching this matter go upon that footing. Gillen's Case, 215 Mass. 96, 102 N. E. 346, L. R. A. 1916A, 371; Grove's Case, 223 Mass. 187, 111 N. E. 702; Bartoni's Case, 225 Mass. 349, 114 N. E. 663. This definition and the decisions rendered respecting it follow directly the "basic principle of the act" as above stated, to the effect that "the cost of injuries incidental to modern industry" should be regarded as a part of the cost of production. The average weekly wages is throughout the act ascertainable only by reference to the wages actually paid at the expense of the industry at which the employee is working. Save in carefully specified exceptions, it is to be ascertained only by reference to the wages paid by the particular employer to the injured employee. It is apparent that the standard for determining the entire cost of production, so far as it includes the cost imposed by the Workmen's Compensation Act, may be found by reference to that particular industry and employer.

[2] The amendment to the act now under consideration must be construed as far as is reasonably practicable so as to harmonize with the general purpose of the act and the machinery provided for its administration. When the word "wages" is used in one definite sense with reference to a particular standard in one vital part of the act, it must be presumed that it is used with reference to the same standard elsewhere in the act and its amendments unless a different meaning is plainly expressed. Gillen's Case, 215 Mass. at 98, 102 N. E. 346, L. R. A. 1916A, 371. It follows that in ascertaining the wages under the instant statute the circumstances to which weight can be given must be confined to the particular employer and kind of industry in which the injury was received. The increase of wages to which weight may be given is that which might have been expected from the particular employer in conducting his industry "under natural conditions."

This interpretation is confirmed by practical considerations. The scheme of the act is that the employer shall be insured against the losses from personal injury to employees arising out of and in the course of their employment. The cost of such insurance can be determined so long as the basis on which compensation is to be reckoned is wages paid by the employer. It can readily be determined so long as the standard fixed by the definition of average weekly wages in part 5, § 2, above quoted, is followed. But it would be a matter of utter uncertainty if the compensation to be paid should depend, not upon wages paid, but upon wages which the Industrial Accident Board after an injury may find upon independent evidence, perhaps not readily open to the employer during the period of employment, that the in

jured employee might have earned in some other employment or field of activity.

"Wages" as used in the statute must be taken to refer to the only wages referred to anywhere in the act (with the exception noted), namely, the wages earned in the particular employment out of which the injury arose. If any exception to this rule were intended, doubtless, it would have been stated with the same explicitness with which the only exception in the definition is set forth.

It follows that there was error in granting requests 3, 4 and 5 of the employee and in refusing to grant request 2 of the insurer. [3] There was no error in considering the appearance of the employee in passing upon the question whether his seeming intelligence, health and aptitude for the work would have been likely to receive recognition by increase in wages by the employer if the injury had not been received. The inspection of a witness often is an important factor in the weight given to testimony by judge or jury.

It is not necessary to discuss the other questions argued by the insurer as they may not arise when the statute is applied correctly by the Industrial Accident Board.

Decree reversed.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

IN RE CLANCY.

WORKMEN'S COMPENSATION ACT-EMPLOYERS.

A city, hiring horses, cart and driver from another to carry material from one place to another as its servants might direct, the driver being left to deal with the horses in his own way, it is not liable for such servant's death under St. 1913, c, 807, making the Workmen's Compensation Act applicable to employees in municipalities.

Appeal from Superior Court, Hampden County; J. Fox, Judge.

Proceedings under the Workmen's Compensation Act by James Francis Clancy's dependent to obtain compensation for the death of James Francis Clancy, opposed by the City of Springfield. Compensation was denied, and dependent appeals. Decree affirmed.

Nathaniel M. Harvey and Jas. H. Mulcare, both of Springfield, for Appellant.

Chas. H. Beckwith and Rufus H. Tilton, both of Springfield, for Respondent.

RUGG, C. J. The agreed facts show in substance that the deceased as teamster had charge of horses and cart owned by one McGillicuddy, Decision rendered, Oct. 23, 1917. 117 N. E. Rep. 347.

in whose general employ he was. His duties were to take care of, control, and drive the horses and team. It was the custom of McGillicuddy, whenever the team was not otherwise in use, to send his driver with the team to the city yards of the city of Springfield and inquire whether or not there was any carting to be done on that particular day, and that, if there was any to be done, the driver was told to whom and where to report, and then was given information as to what to get and to what place to take his load; this was the only authority exercised over him by any official of the city, its officers, agents or servants gave no direction as to the manner of driving the team and had no power to place any other driver in charge of it. There was no understanding between the city and McGillicuddy as to the length of time that carting should be done by his team and driver, and he was under no obligation to come at any particular time and he could take his team from the work at any time-the only obligation resting on the city was to pay him at the rate of $5.25 per day for whatever work was done. The deceased was not on the pay roll of the city, but was paid by McGillicuddy. While working thus in September, 1915, Clancy received mortal injuries by being thrown to the ground because the wheel of his cart came in contact with a standpipe in the street. His dependent seeks to recover from the city of Springfield under the Workmen's Compensation Act (Laws 1911, c. 751). The pertinent provision is St. 1913, c. 807, § 6, in these words:

"This act shall apply to all laborerers, workmen and mechanics in the service of * * * * * *city * * * under

any ten."

*

a

contract of hire, express or implied, oral or writ

It is plain that there can be no recovery. The deceased had no contract of any kind with the city. His contract of employment was exclusively with McGillicuddy, who alone was responsible for his wages. This is the plain case where the city hired from another horses, cart and driver to carry material from one place to another as its servants or officers might direct; the driver being left to deal with the horses in his own way. As was said in Peach vs. Bruno, 224 Mass. 447, 113 N. E. 279, nothing is better settled under such circumstances, when nothing more appears, than that as a matter of law the driver is the servant of the owner of the horses and not of the one who hires them. Shephard vs. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648; Tornroos vs. R. H. White Co., 220 Mass. 336, 107 N. E. 1015; W. S. Quimby Co. vs. Estey, 221 Mass. 56, 108 N. E. 908. This principle of law applies as well to claims arising under the Workmen's Compensation Act as in other branches of the law. Pigeon's Case, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737. The case at bar is well within the authority of the first point decided in Comerford's Case, 224

Mass. 571, 113 N. E. 460. The decision of the Industrial Accident Board was right.

Decree affirmed.

SUPREME COURT OF MINNESOTA.

STATE EX REL. FARIBAULT WOOLEN MILLS CO. ET al.

VS.

DISTRICT COURT, RICE COUNTY, ET AL. No. 20054.)*

WORKMEN'S
FEVER.

COMPENSATION

ACT-ACCIDENT-TYPHOID

Workmen's Compensation Law provides compensation for personal injury caused by accident and then defines the word "accident" as used therein to mean "an unexpected or unforeseen event, happening suddenly and violently *** and producing at the time, injury to the physical structure of the body." Held, that typhoid fever caused by drinking infected water is not caused by an accident within the meaning of the statute.

Original writ of certiorari in Supreme Court by the State, on relation of the Faribault Woolen Mills Company and Globe Indemnity Company, to review the action of the District Court of Rice County and others in allowing compensation under Workmen's Compensation Act to the relator's employee. Judgment reversed.

Appeal from District Court, Hennepin County; Arthur E. Giddings, Judge.

Action by Mary Schauble against S. A. Hedding and others. Verdict for plaintiff, and from an order granting defendant's motion for a new trial, plaintiff appeals. Order affirmed.

Frank McNulty, of Aberdeen, S. D. and W. G. Compton, of Minneapolis, for Appellant.

Wm. B. McIntyre, of Minneapolis, for Respondents.

TAYLOR, C.

We are called upon to review the action of the district court of Rice County in allowing compensation under the Workmen's Compensation Act to an employee of the relator for temporary disability caused by typhoid fever, the germs of which are alleged to have been ingested by drinking infected water furnished in the relator's factory for the use of employees. If contracting this disease by drinking infected water was an accident within the definition thereof contained in the law, the evidence is probably sufficient to sustain the findings of the district court. Our statute, so far as here important, provides for compensation "in every * Decision rendered, Oct. 26, 1917. 164 N. W. Rep. 810.

case of personal injury * caused by accident, arising out of and in the course of employment," and then provides that the word "accident," as used there in shall "be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault and producing at the time, injury to the physical structure of the body." G. S. 1913, $$ 8203, 8230.

The evidence shows that typhoid fever is a germ disease; that it is produced by taking typhoid bacilli into the alimentary canal; that no deleterious effects result until the bacilli taken into this canal have multiplied enormously; and that it requires more than a week after the infection for the disease to develop sufficiently for its symptoms to be discernible. The disease does not result from an event which happens "suddenly and violently," nor from an event which produces "injury to the physical structure of the body" at the time it happens.

Under statutes which provided compensation for personal injury by accident without defining the meaning of the terms used, there was a diversity of opinion among the courts as to whether diseases, and especially the so-called “occupational diseases," were accidents within the meaning of the statute. The American statutes seem to have been framed largely along the lines of the prior English statute. The English courts held that a disease, unless contracted in consequence of some injury to the physical structure of the body, was not a "personal injury by accident," within the meaning of the English law, until by amendment the law was expressly made to include occupational diseases. See cases cited in L. R. A. 1916A, p. 33, note 28, and page 35, notes 33 and 34. In Findlay vs. Tullamore Union, 48 Ir. L. T. 110, 7 B. W. C. C. 973, it was held that typhoid fever was not an accident within the meaning of the law. The courts of Michgan, New Jersey and Ohio seem to have taken the same view as the English Courts. Adams vs. Acme White Lead, etc., Works, 182 Mich. 157, 148 N. W. 485, L. R. A. 1916A, 283, Ann. Cas. 1916D, 689; Liondale, etc., Works vs. Riker, 85 N. J. Law, 426, 89 Atl. 929; Industrial Commission vs. Brown, 92 Ohio St. 309, 110 N. E. 744, L. R. A. 1916B, 1277. The Massachusetts court distinguished their statute from the English statute on the ground that it omitted the element of accident as a condition to recovery, and held that contracting a disease was "a personal injury," although it might not be an accident. Re Hurle, 217 Mass. 223, 104 N. E. 336, Ann. Cas. 1915C, 919, L. R. A. 1916A, 279; Re Johnson, 217 Mass. 388, 104 N. E. 735. The Wisconsin court. held that contracting typhoid fever was an accident within the meaning of their law, but forceful reasons for the opposing view are set forth in the dissenting opinion of Justice Barnes. Vennen vs. New Dells Lbr. Co., 161 Wis. 370, 154 N. W. 640, L. R. A. 1916A, 273. The circuit court of appeals for the ninth circuit held that contracting typhoid fever was an accident within the