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J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 5) online

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[1913] 1 Scot. L. T. 263, [1913] W.
C. & Ins. Rep. 343, 347, 3 N. C. C.
A. 270n; Bryant v. Fissell, 84 N. J.
L. 72, 3 N. C. C. A. 585.

51 In re Sponatski, 220 Mass. 526,
8 N. C. C. A. 1025, L.R.A.1916A
333.

52 In an action under the Work-
men's Compensation Act, 1906 (6



Edw. 7, c. 58) to recover compen-
sation for the death of a workman,
it appeared that the deceased was a
brakeman in charge of a train that
was running buffer to buffer with
and pushing another train towards
siding points, and that in endeavor-
ing to climb from the truck in which
he was riding on to the brake van
of the first train, he fell and was
killed, and it was shown that it was
the duty of the brakeman on the
other train to open the points:
Held, that there was evidence from
which it could be inferred that
the accident arose "out of and in



5188



SUTHERLAND ON DAMAGES.



[§ 1377



gers/' and although his act may have related to a sphere of the
employment with which he was not directly connected.**

The burden of furnishing evidence from which the inference
can be legitimately drawn that the death of an employee was
caused by an accident or injury arising out of and in the course
of the employment is on the claimant.**

Direct evidence of the manner in which the injury was sus-
tained is not essential, it being sufficient if the inferences from
the facts proved support the conclusion that the accident oc-
curred while the employee was engaged in the performance of
his duties.*^



the course of the employment," and
that the dependents of the deceased
v.ere entitled to compensation. Ast-
ley V. R. Evans & Co., Ltd., [1911]
1 K. B. 1036, aff'd [1911] App.
Cas. 674, 3 N. C. C. A. 239.

53 When the evidence permitted
the court to find as a fact that de-
cedent while at w^ork for his em-
ployer as a journeyman carpenter,
on a building in course of erection,
was killed by the falling of a bar
of metal from one of the upper
stories, which was caused to fall by
a workman of an independent con-
tractor who had work on the same
building, the court was justified in
concluding that decedent's death
arose "out of and in the course of
his employment," within the pur-
view of section 2 of the Employers'
Liability Act of April 4, 1911 (P.
L. p. 136). Bryant v. Fissell, 84
N. J. L. 72, 3 N". C. C. A. 585.

54 In turning on the electric cur-
rent in a repair shop in which he
was working for the purpose of run-
ning a grindstone to sharpen his
chisel, a carpenter was acting with-
in the scope of his employment
within the meaning of the Washing-
ton Workmen's Compensation Act
(Laws 1911, c. 74), even though he



had nothing to do with the main-
tenance or operation of the power-
driven machinery in the shop.
Wendt V. Industrial Ins. Commis-
sion of Washington, 80 Wash. Ill, 5
N. C. C. A. 790.

55 Hills V. Blair, 182 Mich. 20,
7 N. C. C. A. 409; McCoy v. Michi-
gan Screw Co., 180 Mich. 454, 5 N.
C. C. A. 455, L.R.A.1916A 323;
Bryant v. Fissell, 84 N. J. L. 72,
3 N. C. C. A. 585.

56 A workman whose duty it was
to remove rubbish from racks in a
flume which supplies water for his
employer's mill, standing, while so
doing, on an unrailed walk very
near the river and using a rake,
was seen performing this duty, his
back being to the river. Some days
afterward, his body was found
down the river, bearing marks of
having struck on rocks, and a broken
rake handle was found in the water.
It was held that the evidence war-
ranted a finding that he was killed
by an accident arising out of and
in the course of his employment,
and that the employer was guilty
of negligence in failing to rail the
walk. Boody v. K. & C. Mfg. Co.,
77 N. H. 208, 5 N. C. C. A. 840,
L.R.A.1916A 10.



§ 1378]



WOEKMEX S COMrENSATION ACTS.



5189



§ 1378. Same subject; disease. The wording of the acts is
not uniform; in some, provision is made for compensation for
"accidental injuries" ; in others, for "injuries by accidents aris-
ing out of" etc. ; and in others for "injuries" or "personal in-
juries" omitting the word accident entirely.

The question whether incapacity or death was due to disease
or to an accident or injury within the act is not free from diffi-
culty. Although certain industrial diseases are expressly in-
cluded within the British Act, by the Amendment of 1907,^'^
this is not true of the American acts, and it has been quite uni-
formly held that industrial diseases are not within the act unless
expressly included.^® However, .'.le niiere fact that disease may
have been the immediate cause of incapacity or death w^ill not
prevent compensation where it was proximately caused by an
accident or injury within the act. This rule has been applied
to nervous shock,^^ heart disease,^" muscular spasm,®^ pneu-



57 Death of one employed as a
gardener, laborer and caretaker, al-
leged to be the result of ptomaine
poisoning from sewer gas breathed
while obeying an order of his em-
ployer to find and open certain cess-
pools, on which work he was en-
gaged four or five days, is not due
to an "accident" arising out of or
in the course of employment with-
in the meaning of the English
Workmen's Compensation Act of
1906, so as to entitle his widow to
claim compensation thereunder, in
absence of proof indicating the exact
time, circumstances, place, and cause
of the accident, since such disease
is not an "industrial disease" sched-
uled in the act concerning which
the applicant is not required to
present such proof. Eke v. Hart-
Dyke, [1910] 2 K. B. 677, 3 N. C.
C. A. 230.

58 The condition known as "lead
poisoning" which is a disease, and
the disability resulting therefrom, is



not one for which the commission
is authorized to pay compensation
out of the state insurance fund to
employees "that have been injured
in the course of their employment."
In re Brown, Ohio Ind. Comm. Bui.,
No. 11656, 8 N. C. C. A. 1089, aff'd
92 Ohio St. 300.

Lead poisoning is an occupational
disease and not an accidental in-
jury within meaning of the' Michi-
gan Workmen's Compensation Act
for which compensation may be
awarded. Adams v. Acme White
Lead & Color Works, 182 Mich. 157,
6 N. C. C. A. 482, L.R.A.1916A 283.

59 A nerfous shock sustained by
a workman engaged in coal mining
caused by excitement and alarm re-
sulting from a fatal accident to a
fellow workman engaged in the same
omploymont, is a "personal injury
by accident arising out of and in the
course of the employment" within
the Workmen's Compensation Act of
1906. Yates v. South Kirkbv, F. &



5190



monia.



SUTHERLAND ON DAMAGES.



[§ 1378



62



blood poison,^ typlioid fever/* and other germ



dis-



H. Collieries, Ltd., [1910] 2 K. B.
538, 3 N. C. C. A. 225.

60 A workman employed as cook
on a lighter, who was suffering from
valvular disease of the heart, in at-
tempting to save some of his clothes
and a surveying instrument when
the lighter commenced to sink, so
aggravated the disease by his exer-
tions and the excitement that he
died. It was held that his death
arose out of and in the course of
his employment. In re Brightman,
220 Massl 17, 8 X. C. C. A. 102,
L.R.A.1916A 321.

A workman, who was 50 years
of age, had been employed at the
respondents' tin sheds for 10 years,
his work being to move tin plates
in cases. On October 5, 1914, he
had been working with some other
men shifting heavy cases. In the
afternoon, while they were moving
lighter cases than they had had to
move in the morning, he fell back-
wards and died almost immediately.
A post-mortem examination estab-
lished that cause of death was rup-
ture of an aneurism of the aorta.
The county court judge found that
the death of the workman was the
result of long-standing heart disease
which reached its ordinary and fatal
result while he was doing the light-
est part of his ordinary day's work.
He found that there had not been
any "accident"' within the? meaning
of the act and made his award in
favor of the employers. Held, it
was a misdirection to consider
whether the rupture occurred when
the deceased was or was not doing
work of a light nature. An acci-
dent should have been found as soon
as it was ascertained that the rup-



ture occurred by reason of the strain
at work, however slight that strain
might have been. McArdle v. Swan-
sea Harbor Trust, 8 B. W. C. C.
489, 11 N. C. C. A. 175.

61 Bystrom Bros. v. Jacobson, 162
Wis. 180.

62 In a claim for compensation
for the death of an employee from
pneumonia, the question whether the
pneumonia was caused by an acci-
dent arising out of and in the course
of the employment is one of fact
and the finding of the commission
in the aflBrmative will not be dis-
turbed where there is evidence to
support it. Bayne v. Riverside
Storage & Cartage Co., 181 Mich.
378, 5 N. C. C. A. 837.

63 An employee sustained a mortal
injury from which death must
sooner or later ensue, a fracture of
the spine with severance of the
spinal cord, causing complete par-
alysis of the lower limbs and a loss
of power and sensation below the
seat of the injury. He was placed
in a hospital and under medical
care. The nature of the injury com-
pelled him to lie in bed in one posi-
tion as a result of which a bed sore
developed and from it he contracted
blood poisoning, or septicaemia,
which was the immediate cause of
his death. Held, that his death re-
sulted from the injury, septicaemia
being merely a contributory cause,
and compensation was properly al-
lowed. In re Burns, 218 Mass. 8,
5 N. C. C. A. 635.

While an employee was engaged
in shaving and painting poles in the
course of his employment, he acci-
dentally caught his hand between
one of the poles and a piece of tim-



1378]



WOEKMEn's COMPEXSATIOX ACTS.



5191



eases ; but the relation of the disease to the injury must be shown
with reasonable certainty.^^ A pre-existing diseased condition
rendering one more vulnerable to injury will not bar compen-
sation.^^ Rupture or hernia when shown to have arisen from
the employment is compensable.^'



ber, whereby the flesh was bruised
and a small piece of skin knocked
from the back of his hand. A few
days later inflammation and sup-
puration set in, the same being pro-
duced by poisonous germs entering
the flesh through the break in the
skin. It was impossible to ascer-
tain the source of the germs or when
they gained entrance to the wound,
the time which elapsed between the
abrasion and the beginning of se-
vere pain and suppuration was the
usual period of the infection for the
disease commonly known as blood
poisoning. It was held that the dis-
ability attending this disorder was
proximately caused by the injury
and abrasion of the skin, and that
the employee was entitled to com-
pensation therefor under the Cali-
fornia Workmen's Compensation
Act. Great Western Power Co. v.
Pillsbury, 171 Cal. 69, 11 X. C. C.
A. 493.

64 Vennen v. New Dells Lumber
Co., 161 Wis. 370, L.R.A.1916A 273.

65 Particles of steel from a lathe
lodged in the operator's eye. On
removal of the particles it was dis-
covered that the eye had become
infected with gonorrhea. The claim-
ant contended that the injury from
the steel was the inciting cause be-
cause it caused an inclination to
rub and also because it gave rise
to an inflamed condition rendering
the eye susceptible to the entry of
germs. Testimony of the medical
witnesses showed that a normal eye



could easily be infected by rubbing
it with a hand infected with gonor-
rheal germs. Held, that the evi-
dence did not show that the injury
was one arising out of and in the
course of claimant's employment
within the meaning of the Michigan
Workmen's Compensation Act (Pub.
Acts Ex. Sess. 1912, No. 10, How.
Ann. St. 2d Ed. § 3939). McCoy
V. Michigan Screw Co., ISO Mich.
454, 5 N. C. C. A. 455, L.R.A. 1916A
323.

66 Where a workman is employed
in a wood-working shop furrowing
posts and his occupation subjects
his abdomen to unusual pressure,
which produces internal hemorrhage,
resulting in his death, a finding
that his death was the result of an
accident arising out of and in the
course of his employment is war-
ranted, 'even though the parts on
which the pressure was exerted were
already diseased and weakened by
cancer. Voorhees v. Smith Schoon-
maker Co, 86 X. J. L. 500, 7 X.
C. C. A. 646.

67 Proof of apparent previous good
health, a heavy and unusual lift
in the course of work, discovery of
rupture on the second day there-
after, death from surgical opera-
tion for relief thereof, and opinion
of the operating surgeon that tht?
rupture was caused by the lifting,
is sufllcient to establish accidental
injury in the course of employ-
ment, within the meaning of the
act. Poccardi, Royal Consul of



5193



SUTHERLAND ON DAMAGES.



[§ 1379



§ 1379. Same subject; wilful misconduct. Where other con-
ditions permitting recovery are shown, it can only be barred by
proof that the injury was the result of the wilful misconduct,
or, as provided in most acts, the ''serious and wilful miscon-
duct," of the workman.^^ Under most of the American acts, in-
toxication constitutes such misconduct,®^ and this is true of the
British act also ; '° but, under the latter, intoxication will not bar
compensation where death or serious and permanent disability
results.'^ Serious and wilful misconduct is to be distinguished
from negligence and gross negligence and resembles closely the
wanton or reckless misconduct which will render one liable to a
trespasser or bare licensee. "^^ It is more than gross or culpable
negligence, and involves the intentional doing of something
either with the knowledge that is likely to result in serious
injury or with a wanton and reckless disregard of its prob-



Italy V. Public Service Commission,
75 W. Va. 542, 8 N. C. C. A. 1065.
Evidence held sufficient to war-
rant finding tliat hernia suffered by
employee was caused by accidental
injury sustained in course of his
employment even though a strangu-
lation did not follow closely iipon
the occurrence of hernia. Andreini
v. Cudahy Packing Co., 1 Cal. Ind.
Comm. (No. 10, 1914) 8, 6 N. C.
C. A. 390.

68 Where the plaintiff in an action
under the Workmen's Compensation
Act for British Columbia has proved
that she was dependent upon the
deceased and that he came to his
death during his employment, the
defendants, to escape liability, must
prove that the injury which caused
death was attributable solely to the
wilful misconduct or serious negli-
gence of the deceased. British Col-
umbia Sugar Refining Co. v. Gra-
nick, 44 Can. Sup. Ct. 105, 2 N. C.
C. A. 852.

69 Under the terms of the Rose-



berry Act (Cal. L. 1911, p. 796) an
act providing a system of compen-
sation for accidental injuries to em-
ployees, the liability of the em-
ployer exists only where there is a
concurrence of certain conditions,
one of which is the absence^ of wil-
ful misconduct. If the injury oc-
curred through the employee's wil-
ful misconduct, there is no lia-
bility, and the Industrial Accident
Board has no power to assess com-
pensation. Great Western Power
Co. v. Pillsbury, 170 Cal. 180, 9
N. C. C. A. 466.

But see Nekoosa-Edwards Paper
Co. V. Industrial Commission of
Wisconsin, 154 Wis. 105, 3 N. C.
C. A. 661n, L.R.A.1916A 348.

70 Williams v. Llandudno Coach-
ing & Carriage Co., Ltd. [1915] 2
K. B. 101, 9 N. C. C. A. 245.

71 Williams v. Llandudno Coach-
ing & Carriage Co., Ltd., [1915] 2
K. B. 101, 9 N. C. C. A. 245.

72 In re Nickerson, 218 Mass. 158,
5 N. C. C. A. 645.



1379]



WOKKMEN S COMPENSATION ACTS.



5193



able consequences."^ If an accident occurs while the workman
is acting within the scope of his authority, and is doing an act
which it was part of his duty to do, and the accident arises from
his being engaged in doing that act and being thereby exposed
to a special risk beyond that of other persons not so engaged,
the employer is liable to pay compensation although the work-
man is doing the act negligently or contrary to rules laid down
for his guidance.''* The fact that an employee was injured while
disobeying orders is not conclusive on the question of serious
and wilful misconduct, but his act must have been deliberate,
not merely thoughtlessly done on the spur of the moment,'*



73 In re Burns, 218 Mass. 8, 5 N.
C. C. A. 635.

An employee's death is none the
less compensable under the New-
Jersey Workmen's Compensation
Act because of the fact that the
fatal accident was due to the em-
ployee's wilful negligence. Taylor
V. Seabrook, 87 N. J. L. 407, 11 N.
C. C. A. 710.

74 Williams v. Llandudno Coach-
ing & Carriage Co., Ltd., [1915] 2
K. B. 101, 9 N. C. C. A. 245.

75 In re Nickerson, 218 Mass. 158,
5 N. C. C. A. 645.

An employee engaged to do clean-
ing, painting and whitewashing,
some of it near machinery and
sliafting, had been directed to do
the latter work during the noon
hours, when the machinery was
stopped. At about 11:30 in the
forenoon of the day he was injured,
the superintendent, replying to a
question from him about the work
on a wall near moving shafting,
told tlie employee that the work
was to be done during the noon
hour, that it was then about 11:30
and that he would find out the cor-
rect time and report it to the em-
ployee. About five minutes later,
the employee started working at the



place indicated and was caught in
the shafting and received injuries
resulting in his death. Held, that
he was not guilty of serious and
wilful misconduct, within the mean-
ing of the Massachusetts Workmen's
Compensation Act (St. 1911, c. 751,
part 2, § 2) preventing the award
of compensation. In re Nickerson,
218 Mass. 158, 5 N. C. C. A. 645.
A servant's hand was injured
while picking cotton from a carding
machine which injury was followed
by infection causing his death. It
appeared that cotton collected on
the guard of the finisher, and unless
removed, caused an imperfection in
tiie product, and that it was the
operator's duty to pick it off while
the maciiine was in motion. It was
near this guard tiiat the accident
happened. It also appeared that the
machinery was so delicate that the
mere placing of the hand on it at
places would cause it to dump and
thereby interfere with its opera-
tions. Held, (1) that the evidence
was suflic'ient to justify the finding
of the Industrial Accident Board
that the sign "Hands Off" placed
on the machines by the manufac-
turer was put there, not as a warn-
ing against danger, but to prevent



5194



SUTHEELAND ON DAMAGES.



[§ 1379



particularly is this true wliere it is not clear that the orders were
understood.''^® The question as to what constitutes serious and
wilful misconduct, within the meaning of the act, is generally a
question of fact, and the finding of the Industrial Accident
Board in regard thereto will not be disturbed when not unwar-
ranted by the evidence."^'

§ 1380. Same subject; acts of nature. The question as to
whether injuries caused by acts of nature such as lightning,''^



people from disturbing the operation
of thc^ machine, and (2) that other
signs posted in the room to the effect
that "Cleaning machinery while in
motion positively forbidden," did
not have reference to picking cotton
from the machines while in motion,
where it was caught on parts of the
machine but not in a dangerous
place, especially as this was part
of the operator's duty. Redfield v.
Michigan Workmen's Compensation
Mut. Ins. Co., 183 Mich. 633, 8 N.
C. C. A. 889.

Where an experienced lineman
violated the employer's posted rules
enjoining the use of rubber gloves
by linemen when working with high-
power or "hot" electric wires, which
gloves were provided by the em-
jDloyer, and disobeyed the order of
the forenaan to use such gloves, and
while at work on such wires with-
out using gloves the employee came
in contact with a wire and received
a shock causing his death, it was
held that he was guilty of wilful
misconduct, and a finding by the
Industrial Accident Board to the
contrary was not supported by the
evidence. Great Western Power Co.
V. Pillsbury, 170 Cal. 180, 9 N. C.
C. A. 466.

76 In an action brought by a
widow under the Workmen's Com-
pensation Act of British Columbia



for the death of her husband, who
was employed by defendant by the
day and who could understand little
or no English, and who was found
dead crushed between the ceiling
and the cage of an elevator which
he had been ordered in English not
to run until he was acquainted with
the same, evidence held insufficient
to support a finding of wilful and
serious misconduct. British Colum-
bia Sugar Eefining Co. v. Granick,
44 Can. Sup. Ct. 105, 2 N. C. C. A.
852.

77 In re Nickerson, 218 Mass. 158,
5 N. C. C. A. 645; In re Burns,
218 Mass. 8, 5 N. C. C. A. 635.

78 A driver for an ice company
was required to follow a fixed route,
in substantial disregard of weather
conditions, though permitted to seek
shelter in times of necessity. When
a severe rain storm, accompanied by
lightning, was in progress he left
his team and went to a tall tree
just within the lot line, either for
protection or in the performance of
his duties soliciting orders. Light-
ning struck the tree, and the same
bolt struck him, and he was killed.
It was held that the evidence sus-
tained a finding that the death of
the decedent was the result of an
accident "arising out of" his em-
ployment within the meaning of the
workmen's compensation act (Laws



§ 1381]



"WOEKMEN S COMPENSATION ACTS.



5195



heat,'' or cold,*" are compensable would seem to depend upon
whether the workman's employment was such as to increase the
hazard. If his occupation was such as to subject him to a risk
of such injury beyond that to which persons not so engaged were
exposed, there would seem to be no valid reason for denying
compensation.

§ 1381. Same subject; sportive acts. Unless there is a caus-
al relation between the injury and the employment, there would
seem to be no sound reason for allowing compensation to an
employee injured by the sportive or playful act of a fellow
workman, wholly disassociated from the employment. The



1913, c. 467, § 9; Gen. St. 1913,
§ 8203). State ex rel. People's Coal
& Ice Co. V. District Court Ramsey
Co., 129 Minn. 502, 9 N. C. C. A.
129, L.R.A.1916A 344.

Tlie finding of the Industrial
Commission that a workman who
was killed by lightning while at
work was not exposed to a hazard
from lightning stroke peculiar to the
employment and that the injury did
not arise out of the employment
cannot, under the Wisconsin act,
be disturbed on appeal where there
is substantial basis in the evidence
to warrant the finding. Hoenig v.
Industrial Commission of Wiscon-
sin, 159 Wis. 646, 8 N. C. C. A. 192,
L.R.A.1916A 339.

79 Engineer dying as result of heat
prostration while on duty held to
have died of accident arising out
of and in course of employment.
Maskery v. Lancashire Shipping Co.
Ltd., [1914] W. C. & Ins. Rep. 290,
6 N. C. C. A. 708.

80 The fact that other men work-
ing with an employee whose foot
was frozen as the result of exposure
to intense cold for ten hours in the
course of his employment were not
affected, is not sufficient to absolve



an employer from liability under the
Quebec Workmen's Compensation
Act, on the theory that the injury
was not an accident but the result
of ill health rendering the employee
peculiarly susceptible to the cold,
and the loss of a portion of an em-
ployee's foot as the result of it
freezing where he was exposed to
intense cold for ten hours in the dis-
charge of his duties, is an "acci-
dent" within the meaning of the
act. Canada Cement Co. v. Pazuk,
22 Quebec K. B. 432, 12 D. L. R.
303, 7 N. C. C. A. 982.

The employment of a journey-
man baker to drive a cart for the
purpose of delivering loaves of bread
and receive payment therefor from
his master's customers, does not ex-
pose the servant to any peculiar
danger from cold, beyond that to
which a large section of the popula-
tion whose occupation is out of
doors is ordinarily exposed, so as to
entitle him to claim compensation
under the Workmen's Compensation
Act, 1906 (6 Edw. 7, c. 58) for in-
jury to his hand caused by frost-
bite. Warner v. Couchman, [1911]
1 K. B. 351, 80 L. J. K. B. 526, 1
N. C. C. A. 51.



.190



SUTUEKLAND ON DAMAGES.



[§ 1381



British courts deny compensation in such cases.^^ The Ameri-
can courts have not gone so far as to deny compensation in all



Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 5) → online text (page 38 of 192)