§ 146. Defenses under federal Act

46

The original federal Act provided that no compensation shall be paid under it where the injury is due to the negligence or misconduct of the employé injured, nor unless the injury shall continue. more than fifteen days. Negligence under this act involves the idea of misconduct, or voluntary and unnecessary exposure to obvious danger, and means more than mere inadvertence or error of judgment, under circumstances not suggesting danger. Failure to exercise incessant vigilance in avoiding a known danger is not negligence. Nor is one chargeable with negligence because he is slower to think and act than another,48 or because in a sudden emergency, and seemingly called upon to act at once, the action taken leads to an injury which would not have occurred otherwise. A laborer called upon to perform a task out of his regular

49

"in the course of employment."

7, Bul. Ohio Indus. Com. p. 70.

Biddinger v. Champion Iron Co., vol. 1, No.

46 In re Dieselman, Op. Sol. Dept. of L. 401; In re Strayer, Op. Sol. Dept. of L. 446; In re Taylor, Op. Sol. Dept. of L. 411.

Proof of negligence.-An injury to a printer's back, incurred while working a hand press, was not due to negligence merely because the printer had continued working the press, although it worked hard and required extra exertion. In re Hutton, Op. Sol. Dept. of L. 408. The employé was engaged in painting machinery while same was in motion. No orders had been given to the contrary, so he was held not guilty of negligence or misconduct. In re Butler, Op. Sol. Dept. of L. 502. The workman was employed as fire guard in the Forest Service, occupying quarters furnished by the government. In attempting to shoot a rat in his cabin he accidentally shot himself. There was nothing in this to show negligence or misconduct. In re McDonald, Op. Sol. Dept. of L. 502.

47 In re Reinburg, Op. Sol. Dept. of L. 398. A laborer engrossed in his work, who momentarily forgets a known danger, is not guilty of negligence. In re Glass, Op. Sol. Dept. of L. 393.

48 No man can be assumed to be indifferent to impending and apparent danger; it is fair to assume that he will endeavor to avoid it. That he is slower to think or slower to act than another is not negligence. In re McFadden, Op. Sol. Dept. of L. 396.

49 In re Lyte, Op. Sol. Dept. of L. 397.

line of work is not chargeable with negligence because he adopts, through ignorance, a method dangerous in fact, but not obviously dangerous to an inexperienced man.50 Artisans are not necessarily negligent because, as they become proficient and dextrous, they naturally make use of movements more or less mechanical or involuntary, which might be regarded as negligent if it were reasonable to expect men never to relax their vigilance and to be constantly on guard.51

The violation of a positive rule or instruction directly resulting in injury amounts to negligence or misconduct,52 if the violation is willful or wanton.5 53 But, in order that the violation of a rule or regulation shall constitute negligence or misconduct, it must appear that reasonable efforts have been made to enforce the same.54 A workman called upon to perform a task out of his regular line of employment is not chargeable with negligence for violation of a rule requiring the wearing of goggles while performing this class. of work.55

50 In re Turner, Op. Sol. Dept. of L. 406.

51 In re Robinson, Op. Sol. Dept. of L. 389.

52 In re Pagliarulo, Op. Sol. Dept. of L. 503.

53 Willful or wanton disobedience of orders is necessary to constitute negligence or misconduct under the federal Act. In re Horn, Op. Sol. Dept. of L. 504.

54 In re Wilhelm, Op. Sol. Dept. of L. 508.

55 In re Duer, Op. Sol. Dept. of L. 507.

CHAPTER VII

COMPENSATION

Section

147-154. Article I.-Earnings as basis of compensation. 155-166. Article II.-Disability and incapacity for work. 167-174. Article III.-Death benefits.

175-192. Article IV.-Payment, release, and related matters. 193-201. Article V.-Treatment and funeral expense.

193-200.

201.

Division I.-Expenses of medical, surgical, and hospital treatment.

Division II.-Funeral expenses.

§ 147. What constitutes earnings

"Earnings," which by these Acts are made the basis for computation of the amount of compensation, include, not only money, whether received as regular wages, as "extra wages," or as gratuities, called "tips," or deducted from the employé's wages for

1 "Extra wages," paid the steward of a ship over and above his ordinary wages, if his work on the trip was satisfactory, and profits made by selling whisky, were part of his remuneration. Skailes v. Blue Anchor Line, Ltd. (1911) 4 B. W. C. C. 16, C. A.

2 An employé in a hotel received a monthly wage of $30 in cash and meals to the value of $30 more. These earnings were increased by tips or gratui

equipment or material, but also anything having a money value,

ties from the guests of the hotel, an average monthly income of $80, because of the polite and attentive treatment accorded them in accordance with the conditions of his employment. The insurer claimed that compensation should be based on a monthly wage of $60, but it was held that tips or gratuities are earnings, and that the employe's compensation should be based upon all his earnings. Hatchman v. New England Casualty Co., 2 Mass. Wk. Comp. Cases, 419 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.).

Where tips which amounted to from 10s. to 12s. a week were received by a waiter in a railway dining car, such tips were a part of his earnings. Penn v. Spiers & Pond, Ltd. (1909) 1 B. W. C. C. 401, C. A. Tips received by a carman in collecting and delivering goods, for special services in leaving or getting the packages at some place other than the entrance, were part of his earnings. Knott v. Tingle, Jacobs & Co. (1911) 4 B. W. C. C. 55, C. A. But it has been held that gratuities received by employés incident to the services performed by them are not to be treated as earnings upon which to base a computation of compensation, unless the contract of hire is made between the employer and employé with reference to such gratuities as the whole, or a part, of the remuneration to the employé for the performance of the services which he is engaged to perform. Reynolds v. Smith, 1 Cal. I. A. C. Dec. 35.

3 Where a miner obtained his explosives at the mine, and their cost was subtracted from his wages, the sum he paid for them was a part of his earnings. McKee v. Stein & Co., Ltd. (1910) 3 B. W. C. C. 544, Ct. of Sess. Sixpence, which was kept out from a miner's pay each week to pay for the oil he used in his lamp, was part of his earnings. Houghton v. Sutton Heath & Lea Green Collieries Co., Ltd. (1901) 3 W. C. C. 173, C. A. (Act of 1897). Money deducted from a miner's wages for things furnished him, and for other equipment expenses, was part of his earnings. Abram Coal Co. v. Southern (1903) 5 W. C. C. 125, H. L. (Act of 1897). But where employers of a gang working in ironstone and sand paid each one the average sum earned per hour by the gang, keeping out the average cost per man of the explosives they used, the cost of the explosives was held not to be a part of the earnings of a member of the gang. Shipp v. Frodingham Iron & Steel Co., Ltd. (1913) 6 B. W. C. C. 1, C. A. Buckley, L. J., said in the last-named case: "There is a difference, material to the present case, between-first, earnings and a right in the employer to make a deduction from those earnings; and, secondly, earnings arrived at by finding a sum which is the difference between two sums. The present case is one of the latter kind.

* There is no deduction as between the employer and any one of the employed. The deduction is made as between the employer and all the employed in the aggregate. The remuneration payable as between any one of the gang and the employer is that man's proportionate part of the sum, ar

such as board, lodging, and washing, and use of a uniform." They do not include payments not received in the employment,

rived at after deduction of the cost of the powder used, not by himself alone, but by himself and others."

4 Where the injured employé received in wages $15 a week and his board, worth $3 a week, 50 per cent. of his earnings amounted to $9, instead of $7.50, a week. (Wk. Comp. Act, P. L. 1911, p. 134) Baur v. Court of Common Pleas, 88 N. J. Law, 128, 95 Atl. 627.

The value of the use of bedroom, kitchenette, and bath by a hotel manager, where the same are furnished as a part of the contract of employment, should be included in the computation of average annual earnings. Fowler v. Zellerbach-Levison Co., 1 Cal. I. A. C. Dec. 609.

In Wallack v. Sorensen, 1 Conn. Comp. Dec. 197, it was held that where there is no direct evidence of the value of board received by the employé as part of his earnings, except as to a few of the things served, the commissioner can take judicial notice of the cost of board and room ordinarily. In this case, having regard to the appearance of the family and of the employé, board and room was fixed at $3 per week; the commissioner holding it proper to take the lower limit, since the burden is on the claimant to establish his case.

Where a workman was earning $30 a month besides his board, which was acknowledged to be worth $15 a month, his average monthly wage was $45. Lewandowski v. Crosby Transportation Co., Rep. Wis. Indus. Com. 1914-15, p. 9. Where a workman was paid $23 per month during the winter months and $30 per month during the fall, together with board, washing, and lodging, estimated at $10 per month, the Commission found his average annual earnings, including the board, to be $452, and his average weekly earning $8.70. Vojacek v. Schlaefer, Rep. Wis. Indus. Com. 1914-15, p. 8.

The value of board and lodging of a seaman while aboard his ship is the cost to the employers (here 1s. 7d. a day), notwithstanding that it would have cost the seaman more ashore (16s. a week), and in determining his earnings its value must be added to the money compensation of 21s. a week. Rosenquist v. Bowring & Co., Ltd. (1909) 1 B. W. C. C. 395, C. A. Free food and washing, supplied to the captain of a ship in addition to his salary of £216 per year, is part of his earnings, and its value is the cost of it to the employers. Dothie v. MacAndrew & Co. (1909) 1 B. W. C. C. 308, C. A. Fletcher Moulton, L. J., said in the above case: "It is incontestable that you must reckon the value of the food as part of the remuneration which he

5 The use of a uniform is part of the earnings of a railway guard, although it is owned by his employers. Great Northern Ry. Co. v. Dawson (1905) 7 W. C. C. 114, C. A. (Act of 1897).

Duberly v. Mace (1913) 6 B. W. C. C. 82, C. A.