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A sawyer employed in the woods, who was required to live at a camp 8 miles from any other available lodging place, and was injured in his bunk at night by a straw from an upper bunk falling into his throat, has been held to be "performing services growing out of and incidental to his employment" at the time of such accident, inasmuch as it was part of his contract of employment that he should sleep on the premises and use the bunk furnished by the lumber compa

ny.

Holt Lumber Co. v. Industrial Commission (1919) 168 Wis. 381, 170 N. W. 366.

An employee who lived in a bunk house, with about sixty other employees, and was injured at night while sleeping there, by an attack of one of the employees who became insane, has been held to be "performing service growing out of and incidental to his employment" at the time of the accident. The defense contended that this risk was not more hazardous to the employee than to the public at large, being similar to the danger from being struck by lightning, but the court answered: "Manifestly, the danger of accident in such sleeping quarters was greater to the employees than to the public at large, whether the accident came from fire, or from one of its employees running amuck, or from any other cause. Where the hazards of the employment combine with any outside agency to produce the accident, and injury results, liability for compensation exists." John H. Kaiser Lumber Co. v. Industrial Commission (1923) 181 Wis. 513, 195 N. W. 329.

In Aho v. Chichagoff Min. Co. (1922) 6 Alaska, 528, a laborer at a mine who was furnished lodging at a bunk house was not allowed to proceed with a common-law suit against his employer for damages by reason of being injured by the collapse of the bunk house, since his remedy was under the act, the injury having resulted from an accident which arose out of and in the course of his employment, it having been contemplated that he should live there, and he being in fact required to do so.

But in Associated Oil Co. v. Industrial Acci. Commission (1923) Cal. -, 217 Pac. 744, an award of compensation to a machinist for an injury from falling off a bunk-house veranda at his employer's camp on a Sunday afternoon, while he was trying to keep cool, was annulled upon the ground that the injury did not arise out of his employment. It was assumed that he was living at the house, which was provided for those employees who cared to live there, although they were not required to do so, there being public rooming houses in a town a mile and a half distant. The court distinguished the case at bar from others in which it was clearly contemplated in the contract of employment that the employee should sleep on the premises. But see Larson v. Industrial Acci. Commission (Cal.) supra, III. a.

Danville, U. & C. R. Co. v. Industrial Commission (1923) 307 Ill. 142, 138 N. E. 289, was a similar case to the California case just noted. Compensation was denied to a dependent of a railroad-bridge worker who was electrocuted late on a Saturday night, at a trolley car used as a bunk house, apparently in trying to put out the light by disconnecting the trolley or otherwise. The men were allowed to stay at the bunk house week-ends, when it was near town, as well as when it was on the road, but were not required to do so. The employee had a room in town where he sometimes stayed.

The fact that a bridge worker was in a tent provided by his employer preparing to go to bed, when he was struck by lightning, does not bring the injury within the provision of arising "out of his employment," although he was within the course of his employment. Griffith v. Cole Bros. (1917) 183 Iowa, 415, L.R.A.1918F, 923, 165 N. W. 577, 15 N. C. C. A. 674.

An injury to a Mexican quarryman from the fall during a storm of an overhanging rock on a hillside, through a tent where he lived with his family, about 150 yards from the quarry, apparently on his employer's premises, has been held to have occurred too far from the quarry to be "on, in, or about" it, within the pro

visions of the act. Alvarado v. Flower Bros. Rock Crusher Co. (1921) 109 Kan. 192, 197 Pac. 1091.

An injury to a track laborer by being struck by an approaching train on a curve when he was walking along the track at night, about half an hour after finishing his work, toward the railroad bunk house where he lived, did not "arise out of and in the course of his employment," he being not obliged to live there or to walk the track. The court said: "The car in which Guastelo bunked had no more connection with the accident than would any boarding house at Delhi in which he might have been living. While, owing to the nature of the work, which at times was remote from where men could secure accommodation, it was customary for defendant to furnish bunk cars on a siding near the work for the laborers to use if they desired, free of charge, it was not compulsory for them to do so, and some did not." Guastelo v. Michigan C. R. Co. (1916) 194 Mich. 382, L.R.A.1917D, 69, 160 N. W. 484.

Compensation has been denied to a laborer who had worked for a railroad, and, upon applying late one afternoon for another job, was told to report before 7 o'clock in the morning, was given a supper and breakfast and allowed to sleep in a car, but who failed to report in the morning, sleeping late and staying on the car, and was injured in starting to cross the tracks for dinner. Brassard v. Delaware & H. Co. (1919) 186 App. Div. 647, 175 N. Y. Supp. 359.

In Corriveau v. Rex (1918) 18 Can. Exch. 275, compensation was denied where a man who had been sleeping, with other workmen engaged in repairing tracks, in a freight car on a siding fitted up as a bunk house, and was found dead in bed, having apparently died in the night from indigestion, upon the ground that the death did not occur in the course of his employment, stress being placed on the fact that, although the men were allowed to sleep in the car, they were not obliged to do so, and, further, that another statute appeared to give a remedy.

In Malky v. Kiskiminetas Valley Coal Co. (Pa.) ante, 1082, the killing of a strike breaker in a bunk house on mining property by a bomb thrown by a striker during the night, and after the day's work had ceased, was held to have been within the course of the employment, it being necessary to house the employee in the bunk house in order to keep him employed, because of the activity and influence of the strikers. (Generally as to the right to compensation under Workmen's Compensation. Acts for injuries growing out of labor troubles, see annotation in 13 A.L.R. 549, and ante, 1085, the later annotation being appended to the Malky Case.)

In Philbin v. Hayes (1918) 87 L. J. K. B. N. S. (Eng.) 779, [1918] W. C. & Ins. Rep. 194, 119 L. T. N. S. 133, 62 Sol. Jo. 519, 34 Times L. R. 403, [1918] W. N. 166, 11 B. W. C. C. 85-C. A., an accident by the blowing down at night of a hut in which a workman on a large construction job was living was held not to have happened in the course of his employment, for the reason that, although he was allowed to live in the hut at trifling cost, as most of the other workers also lived in similar huts, there being not sufficient accommodations otherwise for them, yet he was not required to live there, but could have lived elsewhere, as some of the workers did. The court relied on the decision by the House of Lords in Charles R. Davidson & Co. v. M'Robb [1918] A. C. (Eng.) 304, 87 L. J. P. C. N. S. 58, 118 L. T. N. S. 451, 34 Times L. R. 213, 62 Sol. Jo. 347, 55 Scot. L. R. 185, 10 B. W. C. C. 673—H. L., where the employment of an engineer on a ship was interrupted by his leaving the ship for his own purposes, an accident happening to him as he returned to the dock.

c. Hotels and apartment houses. There has been considerable conflict, on the facts of the cases, as to accidents happening at hotels and apartment houses, but the same prineiples apply.

In Rucker v. Read (1916) 39 N. J. L. J. 48, compensation was allowed for the death by fire of a domestic servant

(311 Ill. 66, 142 N. E. 554.)

who lived on the fifth floor of an apartment house which was burned at night, she being apparently required to live there. The court said: "In this case the risk of injury as a result of fire was one which might have been contemplated by any reasonable person entering the employment of respondent. Even though such risk was an 'extraordinary risk which is only indirectly connected with the employment, owing to the special nature of the employment,' it was a risk incidental to such employment. During the twenty-four hours of ordinary days deceased was continuously acting in the course of her employment; she was required under her contract to sleep in the room selected by respondent; she apparently had no other place in which she might sleep; the duty of deceased to sleep in the bedroom involved a risk of fire, a risk to which she was particularly exposed on account of the distance from the street and the location of the bedroom in a building used as an apartment house, in which a large number of families resided. If deceased had not been in the service of respondent at the time of the fire, the accident by which she lost her life would not have happened to her. The accident was 'in the course of the employment' of the deceased, because it was at a time during which she was employed, and the deceased was occupying a room designated, selected, and furnished by respondent, which it was her duty under her contract of employment to occupy. . . The accident arose 'out of the employment' of the deceased, because it was something the risk of which might have been contemplated by a reasonable person when she entered the employment of the respondent, as incidental to it."

In Cranney's Case (1919) 232 Mass. 149, 15 A.L.R. 584, 122 N. E. 266, the shooting of a hotel head waiter by a waiter whom he had discharged was held to have arisen out of the former's employment. The head waiter. was eating lunch at the hotel while off duty, and the fact that he was subject to call while in the hotel was stressed. The court said: "It was plainly in the

employer's interest and for its benefit that Zacharachi should be discharged, and when Cranney was hired and intrusted with this general authority, which he exercised in a reasonable and suitable way, it was contemplated that whatever befell him when acting strictly within the scope of his employment, even if the time and conditions could not be forecast, was incidental to and part of the employment."

An award of compensation to a head waitress who lived at a hotel, which award was based on her contracting typhoid fever from drinking water from an artesian well at the hotel, has been held to be warranted. Frankamp v. Fordney Hotel (1923) 222 Mich. 525, 193 N. W. 204.

In Chitty v. Nelson (1908) 126 L. T. Jo. (Eng.) 172, 2 B. W. C. C. 496, compensation was awarded for the death of a hotel kitchenmaid by being suffocated in her room by smoke from a fire which started in the room immediately under hers, after the servants had all retired. There was no question that the accident happened in the course of the servant's employment, but the defense contended that the girl did not occupy an abnormally dangerous position. The court held that the accident arose out of her employment as well, and said: "In the present case it will be conceded that, but for the fact of the deceased being in the service of the respondent at the time of the fire, the accident by which she lost her life would not have happened to her. It will also be conceded that it was part of her duty to sleep in the room assigned to her, a duty which involved a certain amount of risk in case of fire,-a risk to which she was exposed not only on account of the distance from the ground, but also from the fact that her fellow servant was an elderly woman suffering from bad legs, which naturally would enhance the difficulties of any rapid escape for her, and also for the deceased, if she determined to stand by her, as it is in evidence she actually did. This being so, I am of the opinion that the fact of sleeping in this room and sharing it with an elderly and inactive fellow

servant was part of a duty which the deceased owed to her employer and to herself, a duty which exposed her to a risk in case of fire more than the usual and ordinary risk, and the consequence of which proved fatal to her; and therefore, finding this as a fact, I hold that the accident by which the deceased lost her life did arise both out of and in the course of her employment in the respondent's service."

In Alderidge v. Merry [1913] W. C. & Ins. Rep. 97, 47 Ir. L. T. 5, [1913] 2 Ir. R. 308, 6 B. W. C. C. 450—C. A., an injury to a work girl's eye by reason of a bit of mortar falling into it from the ceiling of a hotel garret where she slept was held to be in the course of her employment as servant at the hotel, and to have arisen out of the employment, she being required to sleep there and having just got out of bed in the morning to light a fire in response to her employer's call.

In Williamson v. Industrial Acci. Commission (1918) 177 Cal. 715, 171 Pac. 797, it was held that an injury to a hotel or rooming-house chambermaid from climbing into a light well to clean it of litter, to which the owner of the property had called her attention when her employer, the manager of the house, was not on the premises, was not by accident arising out of and in the course of her employment, the cleaning of the light well being no part of her duties, but she having volunteered to do it to help the janitor, who was ill. The court said: "It is conceded by the respondent herein that, in attempting to do said act, the decedent did step aside from the sphere of her specific employment, and was thus beyond its scope, but it is contended that, since the act which she was undertaking to do was undertaken out of loyalty to the interests of her employer and for the latter's benefit, the statute should be construed so liberally as to allow compensation for the injury sustained in attempting to perform it. We think, however, it would be an unwarranted extension of the statute to give it application to acts done without the knowledge or consent of the employer, which, however commendable from

the viewpoint of loyalty to one's employer, are not only outside of the employee's specific employment and duty, but which are in themselves of such a hazardous character as that the employee ought not to be reasonably expected or required to do them, except as a matter of immediate necessity or emergency, even though they might be within the scope of the employment. This is such an identical case. Even if the deceased had been the janitress in charge of the building generally she could not reasonably be expected to do the thing she was essaying to do, for it was peculiarly the work of a man-and it might even be said of a young and active man-to climb out of a window, find a precarious footing upon a narrow ledge between 3 or 4 feet below it, and thence descend by a lean-to stepladder to the bottom of a light well nearly 9 feet below the point of exit from the window. We think the attempted doing of this act by the deceased, admittedly outside the range of her designated duties, was also so clearly beyond the scope of her employment as to require no further discussions."

In Daly v. Bates & Roberts (1918) 224 N. Y. 126, 120 N. E. 118, reversing (1918) 183 App. Div. 914, 169 N. Y. Supp. 1090, a hotel laundress who lived at the hotel injured her wrist while washing her own clothes at night. This injury was held to be outside the protection of the act, inasmuch as "she was not engaged in the performance of any duty she was employed to perform, or directly connected with or incidental to the work of the employer but her labor there was entirely disassociated with the work of her employer." The court further reasoned that "had the claimant remained in her room in the hotel, and engaged her time in mending her clothing, and while so engaged met with an accident by reason of using a scissors, it could scarcely be held that such injury would arise out of and in the course of her employment or was incidental thereto."

Compensation has also been denied.

to a superintendent of an apartment house for an injury received one morning on the stairs from an altercation with a tenant in reference to a key, following the superintendent's calling on the tenant's wife, the superintendent being not on his master's business at the time, although he was apparently on duty (Muller v. H. & A. Cohen (1919) 186 App. Div. 845, 174 N. Y. Supp. 736); and to a janitress of an apartment house who, with her family, occupied an apartment there, and was injured by the fall of part of the ceiling in her kitchen as she was preparing to eat breakfast, even upon the assumption that she was always on duty when her services were required, inasmuch as at the time of the accident she was doing nothing for her employers nor anything incidental thereto (Lauterbach v. Jarett (1919) 189 App. Div. 303, 178 N. Y. Supp. 480).

In the reported case (KRAFT v. WEST HOTEL Co. ante, 1245), where compensation was denied, it will be noted that, while the chambermaid lived at the hotel, she was not required to do so, and the court also stressed the fact that, in using an alcohol lamp in curling her hair, she was violating an express order, so that the accident did not arise out of her employment. The dissenting opinion, as also the original opinion of the same court in (1921) Iowa, 185 N. W. 895, which was reversed on the rehearing, considered that the fire occurred after she had finished curling her hair, and that, as she owed her employer the duty to put it out, in order to protect his property and the lives of the guests, her burns arose out of her employment while saving him in the emergency.

d. Employers' private residences. Although no case has been found which allows compensation to a servant living at an employer's private residence upon this particular ground, the following cases, in which compensation has been denied, will be of interest:

In Royal Indemnity Co. v. Industrial Acci. Commission (1923) — Cal. —,

221 Pac. 371, it appeared to be assumed that a chauffeur who was killed at night in his employer's house by a Chinese cook, after he (the chauffeur) had been reporting to his employer and went downstairs with the employer to investigate a noise which sounded like a burglary, was acting in the course of his employment, and, further, that if he had been killed by a burglar under such curcumstances the accident would have arisen out of his employment. The court considered, however, that he was killed from motives of private revenge, there being some evidence of a previous scuffle between the chauffeur and the cook, and that the latter had no intention of killing his employer or molesting the property, and held that the accident did not arise out of the employment. Lawlor, J., dissented, believing the commission's finding to be warranted, that the Chinaman was a marauder and that his motive could not be determined.

In Clifford v. Joy (1909) 43 Ir. L. T. 193, 2 B. W. C. C. 32-C. A., compensation was denied for burns causing the death of a girl servant who had been drying her hair outside her employer's house, and, upon being called in to take care of a baby in a cradle near a fire, took a position too close to the fire and her blouse was burned. The court said, in holding that the accident did not arise out of her employment: "The real question is whether the blouse took fire because the girl was drying her hair near the fire. If we came to the conclusion that she was engaged at two operations, one in charge of the child, and the other drying her hair, the question is, Which of the two brought her within reach of the fire and set her clothes on fire? She would not have been in the place in which she took fire by reason of being in charge of the baby, and there is ample proof that the accident wholly arose out of the operation of being engaged in drying her hair. The risk of taking fire while engaged in drying her hair was not one within the scope of her employment."

A lady's maid whose eye was in

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