narrow or restricted construction.81 It is not confined to actual work. It extends to all things which the contract of employment expressly or impliedly entitles the workman to do. Thus he is entitled to pass to and from the premises and to take his meals on the premises. But he is not entitled, and therefore he is not employed, to do things which are unreasonable or expressly forbidden.32 Although an office is an "employment," it does not follow that every employment by the public is an office. A man may be employed by the government under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if the duty be a continuing service defined by rules prescribed by the government, and not by contract, and an individual appointed by government enters on the continuing duties appertaining to his station, without any contract defining them, it is very difficult to distinguish such a charge or employment from an office.33

34

Some of the Acts are limited in their operation to those employers having five or more employés, excluding members of the employer's family and casual employés from the count. Any per

31 Winters v. Mellen Lumber Co., Bul. Wis. Indus. Com., vol. 1, p. 89. 32 Brice v. Lloyd, Ltd., [1909] 2 K. B. 809.

33 Chief Justice Marshall in U. S. v. Maurice, 2 Brock. 96, 102, 103, Fed. Cas. No. 15,747; Blynn v. City of Pontiac, 185 Mich. 35, 151 N. W. 681.

34 The statutes of some states limit the law to those employers having five or more employés, but the Iowa Act does not contain such a provision, and therefore applies to employers having one or more employés. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 6.

The original Connecticut Act applied to all employers, regardless of the number of employés. Bayou v. Beckley, 89 Conn. 154, 93 Atl. 139, 8 N. C. C. A. 588.

35 The Connecticut Act as amended excludes members of the family from the definition of employés, and in Young v. Holcomb, 1 Conn. Comp. Dec. 482, it was held that, there not being five persons outside the family employed by the respondent, and he having not accepted the Act under § 2 of part B, he was not under the terms of the Act.

36 Clements v. Columbus Sawmill Co., vol. 1, No. 7, Bul. Ohio Indus. Com. p. 161.

son engaged in manual or mechanical labor in any shop, mill, factory, or other place, by whatever name known, in which shop, mill, factory, or place power-driven machinery is used and five or more persons are employed, is engaged in an employment within the New Hampshire Act, and entitled to its benefits if he is injured by accident arising out of and in the course of the employment.37 An employer may be said to employ "four or more employés in a common employment" within a provision of the Wisconsin Act that every employer of four or more employés in a common employment shall be deemed to have elected to accept the compensatory provisions of an Act, where he usually employs such number or does so most of the time so that such employment becomes the rule, and not the exception. The operation of such a provision as to the employer is limited to the usual rather than the unusual condition of a business, trade, or occupation. Thus a farmer who does not regularly employ four or more men to run his farm was not an "employer" within the Act merely because he temporarily employed four or more men in threshing time and occasionally in tobacco work.38

Many of the Acts predicate the right to recover compensation on the employment having been hazardous or extrahazardous.39

37 Boody v. K. & C. Mfg. Co., 77 N. H. 208, 90 Atl. 860, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280.

38 (Wk. Comp. Act, St. 1915, § 2394-5, subsec. 2) Kelly v. Haylock (Wis.) 157 N. W. 1094.

39 The manifest intent of the law is not to cover and compensate for accidents generally, but to cover accidents occurring in those employments or occupations which are specifically classed as, or which may be found by the commission to be, extrahazardous. Guerrieri v. Industrial Insurance Commission, 81 Wash. 266, 146 Pac. 608. Under the provisions of the Washington Act abolishing the jurisdiction of the courts over personal injury claims, only those in the relation of employer and employé in "extrahazardous" occupations are affected. (Workmen's Compensation Act Wash. § 1) Rulings Wash. Indus. Ins. Com. 1915, p. 3.

This limitation is not essential, however, to the validity of a Compensation Act.40 Statutory specifications of those employments which shall be deemed hazardous have not entirely prevented controversy in respect thereto,11 though it is apparently not disputed that the language of such specifications should not be extended by unnecessary implication to employments not enumerated. In the construction and application of these provisions, it has been held that the term "hazardous employment" does not include the

43

40 The legislative power to impose the liability upon an employer who is without fault does not, in the view of the courts which have dealt with the subject, rest upon the consideration that the particular employer is conducting an industry in which injury is more likely to result than in some other. Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398.

41 In Smith v. Price, 168 App. Div. 421, 153 N. Y. Supp. 221, the court said: "Group 41, when read with subdivision 1 of section 3 of the Act, was evidently intended to apply to persons operating trucks, or the other vehicles or appliances mentioned in the Act, for profit, when operated otherwise than upon tracks. The provision is plain when we read group 1, which includes the operation of all kinds of cars upon railways and inclined railways. The provisions of group 1 fairly cover all vehicles operated for profit upon tracks, and it is a fair inference that group 41 was intended to cover all other vehicles operated for profit. The clause ‘otherwise than on tracks' was inserted in group 41 to distinguish that group clearly from group 1. The words 'on streets, highways or elsewhere' are evidently surplusage. While the expression is perhaps unfortunate, it was evidently intended to make certain that the group covered all cars and trucks except those operated upon tracks, covered by group 1."

42 The rule of ejusdem generis would prevent any general language to be extended beyond the special language used. People ex rel. Kinney v. White, 64 App. Div. 390, 392, 72 N. Y. Supp. 91; Lantry v. Mede, 127 App. Div. 557, 560, 111 N. Y. Supp. 833.

embraced in the several groups Aultman & Taylor Co. v. Syme,

43 The express mention of the matters necessarily excludes those not mentioned. 163 N. Y. 54, 57, 57 N. E. 168, 79 Am. St. Rep. 565. While the New York Act is remedial, and should be given a liberal construction, the courts will not give the language of the Act a strained or unusual construction in order to bring within the Act an employment not declared by it to be hazardous. Tomassi v. Christensen, 171 App. Div. 284, 156 N. Y. Supp. 905; De La Gardelle v. Hampton Co., 167 App. Div. 617, 153 N. Y. Supp. 162.

46

45

work of a janitor," or of a person rendering services chiefly of a domestic and nonhazardous character, the business of running threshing machines, the business of dry goods and clothing," or the work of one engaged in harvesting ice, such employments not being enumerated, but includes a street car company," the case of an employé standing on a scaffold while painting a sign of a building,5° an employé of a brewery,51 a teamster hauling sand,52

48

44 The work of a janitor is not within the enumerated hazardous employment, though he be injured while working on a flagpole on top of a building. Gleisner v. Gross & Hebener, 170 App. Div. 37, 155 N. Y. Supp. 946. Workmen's Compensation Act, § 2, provides that the Act shall apply to all inherently hazardous employments, including workshops where machinery is used. Section 3 defines a workshop as a place where power-driven machinery and manual labor is used. Where a janitor in an office building was injured in scrubbing down the walls and floors of an elevator shaft beneath the cage, his rights were not governed by the Act. Remsnider v. Union Savings & Trust Co., 89 Wash. 87, 154 Pac. 135.

45 See next section.

46 Benton v. Wilson, Bulletin No. 1, Ill., p. 54.

47 Christianson v. Barber, Bulletin No. 1, Ill., p. 71.

48 (Wk. Comp. Act, Consol. Laws, c. 67, § 2, subd. 33) Aylesworth v. Phoenix Cheese Co., 170 App. Div. 34, 155 N. Y. Supp. 916.

Note.-Harvesting of ice was made a hazardous employment by the amendment of 1916 (Laws 1916, c. 622), which added this occupation to group 25.

49 A street car company, engaged in the carrying of passengers, is an extrahazardous employer of labor within the meaning of clause 3, par. B, of section 3; it is a business of carriage by land or water, and loading or unloading in connection therewith. Chicago Savings Bank & Trust Co. v. Chicago Rys. Co., Bulletin No. 1, Ill., p. 104.

50 An employé standing on a scaffold, from which he fell and was killed, while he was painting a sign on the side of a building, was engaged in a “hazardous employment." (Laws N. Y. 1914, § 3) In re Rheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598.

51 (Wk. Comp. Law, § 2, group 27) In re Heitz, 218 N. Y. 148, 112 N. E. 750, affirming (Sup.) 155 N. Y. Supp. 1112.

52 (Wk. Comp. Act, § 2, groups 19, 41) Dale v. Saunders Bros., 171 App. Div. 528, 157 N. Y. Supp. 1062.

a department store employé," the business of maintaining, repairing, and upkeep of the wires of a telephone company, and the work of an express company's stable employé on whom a horse falls. The driver of a horse-drawn vehicle is covered by the provisions of the Maryland Act and is engaged in an extrahazardous employment."

55

56

An employer who comes under the provisions of the Illinois Act either by election or operation of law brings with him all his employés in any wise connected with his business, and not part only.57 The business of owning and operating a loft building is not a hazardous employment under the New York Act; 58 nor is the business of owning and operating apartment houses.59 In New York it has been held that a wholesale grocery employé engaged in storing goods in a warehouse maintained by his employer merely for the storing of its own goods was not engaged in the "employment" of "warehousing," " that an employé injured while en route

53 A department store comes within the Act by reason of paragraph (b) of section 3. Stevens v. Hillman's Department Store, Bulletin No. 1, Ill., p. 17.

54 (Wk. Comp. Act, § 3, par. "b") Anderson v. Ashmore Mut. Tel. Co., Bulletin No. 1, Ill., p. 132.

55 Costello v. Taylor, 217 N. Y. 179, 111 N. E. 755, affirming 169 App. Div. 905, 153 N. Y. Supp. 1111.

56 (Wk. Comp. Act, § 32) American Ice Co. v. Fitzhugh, 128 Md. 382, 97 Atl. 999.

57 Gylfe v. Suburban Ice Co., Bulletin No. 1, Ill., p. 167.

An employé doing simply barn work for an express company that comes under the Act, who is injured, is entitled to compensation, as the Act brings in all of the employés or none. Zorcic v. Adams Express Co., Bulletin No. 1, Ill., p. 55.

58 Chappelle v. 412 Broadway Co. (N. Y.) 112 N. E. 569, reversing (Sup.) 155 N. Y. Supp. 858.

59 Sheridan v. P. J. Grool Construction Co. (N. Y.) 112 N. E. 568, reversing (Sup.) 155 N. Y. Supp. 859.

60 The claimant was not engaged in the "employment" of "warehousing" at the time he sustained his injuries, where his employer was not carrying