87 90 92 88 89 ger in the government printing office carried on the clerical roll,85 and the master of a dredge, where the work performed was in the nature of that of a "handy man," se but not a ship's draftsman, the matron of an Indian school, a transit man, a surveyor, a clerk engaged in office work," an instrument man in a surveying party, where his work was manual and physical, rather than clerical or professional, 22 an assistant veterinarian, engaged in treating sick animals, giving medicine, and dressing wounds,93 a laboratory assistant engaged in making tests of materials in a chemical laboratory," a dockmaster, having the care of a dock and the supervision of the dock force," a "laboratory assistant" at the Picatinny Arsenal, or a cement tester and chemist in the reclamation service, whose work was semiprofessional in nature." The class of workmen designated by the term "laborer" has been determined to include a policeman or watchman,98 a time inspector,oo 96 6 L. R. A. 338, 18 Am. St. Rep. 495. In the language of the business world, says Mr. Chief Justice Peters, a laborer is one who labors with his physical powers, in the service and under the direction of another, for fixed wages; this is the common meaning of the word, and hence its meaning in the statute. Blanchard v. Railroad Co., 87 Me. 241, 32 Atl. 890. 85 In re Ellett, Op. Sol. Dept. of L. 112. * In re Waters, Op. Sol. Dept. of L. 110. 87 In re Ripley, Op. Sol. Dept. of L. 110. 88 In re Humphreys, Op. Sol. Dept. of L. 111. 91 In re Alcee, Op. Sol. Dept. of L. 61. a rigger and diver,' an employé designated a messenger, but engaged in work of the laboring class, a sailor working on a dredge and assisting in dredge work, an employé appointed as a special laborer messenger engaged on laborer or messenger work, except when detailed to clerical work, a packer employed in a navy yard storeroom, to handle, arrange, and list stock," a "survey man" required to render assistance to surveyors," a working foreman of laborers, though an acting inspector, an employé designated an inspector, engaged in marking and passing cross-ties, piling, and lumber, and without any duty of supervision or superintendence," but not a foreman or superintendent, who directs the work of others and whose work is mental and administrative or executive,10 a draftsman whose duties resemble those of a clerk or artist,11 or a concrete inspector engaged in inspecting and directing the work of others.12 In respect to a sanitary inspector in the Canal Zone, it has been authoritatively said that, if he was employed principally on account of his expert or professional knowledge of disease germs and the like, he should be regarded as belonging to the professional class, and the fact that his duties required him to visit different parts of the canal cut would not bring him within the scope of the Act, but that if he was employed on labor which was essentially 1 In re Lagerholm, Op. Sol. Dept. of L. 104. 2 In re Mullins, Op. Sol. Dept. of L. 58. 3 In re Zacias, Op. Sol. Dept. of L. 62. 4 In re Adler, Op. Sol. Dept. of L. 63. 5 In re Crandall, Op. Sol. Dept. of L. 77. 6 In re Hott, Op. Sol. Dept. of L. 89. 8 In re Keating, Op. Sol. Dept. of L. 91. physical, or at least manual, even though requiring skill in its performance, and if his duties required no more special knowledge or training than an ordinarily intelligent person might readily acquire after entering upon the discharge of the duties of the position, he should be regarded as of the laboring class, to which the Act applies. 13 Compensation legislation does not confine its protection to healthy employés. The previous condition of health is of no consequence in determining the amount of relief to be afforded. It has no more to do with it than the employé's lack of ordinary care or the employer's freedom from simple negligence, though it is a circumstance to be considered in ascertaining whether the injury resulted from the work or from disease.14 The fact that the injured employé, in view of his youth, is employed unlawfully, does not bar the recovery of compensation in Iowa 15 and California; 16 but a different rule prevails in Minnesota,1 in view of a provision making the Act applicable to minors 13 In re Pickett, Op. Sol. Dept. of L. 80. 14 (Wk. Comp. Act, pt. 5, § 2) In re Madden, 222 Mass. 487, 111 N. E. 379; Crowley v. City of Lowell, 223 Mass. 288, 111 N. E. 786. See §§ 98, 125, post. 15 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 22. 16 Where an employer, either willfully or in good faith, employs a minor under fifteen years of age in violation of a law which requires that a permit be secured from the superintendent of schools prior to such employment, the minor on being injured in the course of his employment, is entitled to compensation notwithstanding the illegality of the employment. The employer cannot avoid the requirements of the Workmen's Compensation Act by urging that he had no lawful authority to employ the minor. Stanton v. Masterson, 2 Cal. I. A. C. Dec. 707. 17 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bul. 9, p. 22. "who are legally permitted to work under the laws of this State," 18 and also in Wisconsin.19 However, in the latter state, where the minor is legally permitted to work, but cannot legally work in the hazardous employment at which he was injured, he is within the Compensation Act.20 Contrary to the rule applicable to commonlaw actions, compensation cannot be recovered under the Washington Act for the death of a child under 14 and employed in a mill in violation of statute, though there is no causative connection between the violation of the law and the death of the boy." The New Jersey Act does not apply in case of injury to a child under 14 years of age who is unlawfully employed in a factory.22 An apprentice who is qualifying himself to operate an elevator is an "employé" within the Minnesota Act.23 § 58. Employés excepted Many of the Acts provide in substance that "employé" shall include every person in the service of another under any contract of hire, express or implied, oral or written, except one whose employment is casual or is not in the "usual course of the trade, business, profession or occupation" of his employer, or not for the purposes of his employer's trade or business.2 These, as well as other ex 18 (Wk. Comp. Act, § 34 [Gen. St. 1913, § 8230]) Pettee v. Noyes (Minn.) 157 N. W. 995. 19 The Compensation Act does not govern where a minor is employed in violation of law. Stetz v. F. Mayer Boot & Shoe Co. (Wis.) 156 N. W. 971. 20 St. 1913, § 2394-7 (2)—8; Foth v. Macomber & Whyte Rope Co., 161 Wis. 549, 154 N. W. 369; Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A, 1, Ann. Cas. 1915B, 847. 21 Hillestad v. Indus. Ins. Com. (1914) 80 Wash. 426, 141 Pac. 913, Ann. Cas. 1916B, 789. 22 Hetzel v. Wasson Piston Ring Co. (N. J.) 98 Atl. 306. 23 Pettee v. Noyes (Minn.) 157 N. W. 995. 24 The employment was for the purposes of the business within the English Act in case of the casual employment of a laborer hired to repair the roof of a building in which a grocery and drapery shop were run, although ceptions contained in the various Acts, should be construed reasonably to effectuate the legislative intent,25 and should be held inapplicable where the employé is engaged in the business for which he was hired and has no reason to think there is any change in the business, and where there is no change of employer.26 In the absence of a clearly expressed legislative intent to that effect, an Act will not be construed to exempt from its operation nonresident employés of alien employers who, while working within the state, may receive personal injuries arising out of and in the course of employment.27 the upper part was used as living quarters by the assistants (Johnston v. Monasterevan General Store Co. [1909] 2 Ir. R. 108, C. A.); where a retired doctor, farming for profit, hired a man in casual employment to trim some trees which seemed liable to injure a wall of the haggard, and he was injured while doing the work (Cotter v. Johnson [1912] 5 B. W. C. C. 568, C. A.); where a laborer asked a farmer to cut an intervening hedge which shaded the laborer's garden, and was told by the farmer he would pay him to do it himself, the farmer saying he would use part of what was cut off for hop poles (Tombs v. Bomford [1912] 5 B. W. C. C. 338, C. A.); but not where a widow managed property, part her own and part in which she owned a share, making no charge to her relatives for looking after their shares, and employed a workman to whitewash some of the cottages (Bargewell v. Danies [1908] 98 L. T. R. 257, C. A.); where a shopkeeper employed a casual laborer to repair some buildings occupied by his tenants, and entirely disconnected with the shop (Kelly v. Buchanan [1913] 47 Ir. L. T. 228, C. A.); or where a workman was hired to clean the windows of a physician's residence, including the window of his consulting room (Rennie v. Reid [1909] 1 B. W. C. C. 324; Ct. of Sess.). 25 Panama-Pacific International Exposition Co. v. Hopper, 1 Cal. I. A. C. Dec. 429. 26 (St. 1911, c. 751, pt. 5, § 2) In re Howard, 218 Mass. 404, 105 N. E. 636. Where an employé was engaged in trimming trees for his employer, an electric company, under directions of the company's agent, which work he had been hired to do, the work was not "casual" or outside the "usual course of the trade, business, profession or occupation," though the company may have no interest in trimming the particular tree on which the employé was working at the time of the injury. Id. In re 27 The Massachusetts Act does not disclose such legislative intent. American Mut. Liability Ins. Co., 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914D, 372. |