ington, Wyoming and Hawaii. In the remaining states which have compensation statutes the law is optional or "elective" except that in some of the states, the law is compulsory as to employees of municipalities.

In the Jensen case the Court of Appeals decided that the enactment of this section was a proper exercise of the police power of the State of New York and that the liability prescribed thereby does not constitute the taking of property without due process of law in violation of the 14th amendment of the Federal constitution.

The doctrine of respondeat superior has no application in compensation cases nor are the rules of employers liability for negligence controlling.

Dale, Matter of vs. Saunders Brothers, 218 N. Y. 59. (Court of Appeals, April 25, 1916.)

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§ 11. Alternative remedy. The liability of an ployer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his personal representatives, husband, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death, except that if an employer fail to secure the payment of compensation for his injured employees and their dépendents as provided in section fifty of this chapter, an injured employee, or his legal representative in case death results from the injury, may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be necessary to plead or prove freedom from contributory negligence nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee. (Section 11 am'd by L. 1914, Ch. 316, and as amended by L. 1916, Ch. 622, effective June 1, 1916.)

(This section makes the compensation remedy exclusive as to compensatable injuries where security is given for the payment of compensation. For the liability of employers who are not subject to the compensation law,

see Article 14 of the Labor Law in the Appendix hereto.)

The term "legal representative" as used in this section means the dependent or dependents of the deceasd and not the administrator or the executor of the estate.

Dearborn, Matter of vs. Peugeot Auto Import Co., 170 App. Div. 93; 155 N. Y. Supp. 769.

This section does not prohibit an action to recover damages for disfigurement nor an action to recover damages for an injury for which no compensation is provided by Section 15.

Shinnick vs. Clover Leaf Farms, 152 N. Y. Supp. 649; s. c. 154 N. Y. Supp. 423; 169 App. Div. 236.

This section does not prohibit an action to recover damages by the administrator on behalf of next of kin not included as dependents under Section 16.

Shanahan, vs. Monarch Engineering Co., 156 N. Y. Supp. 143.

(In a decision handed down March 22, 1916, in Special Term, in the case of Michael Connors vs. SemetSolvay Co., Supreme Court Justice Andrews refused to follow the decision in the Shinnick case in relation to disfigurement, holding that the Court of Appeals had expressed a contrary view in the Jensen case, 215 N. Y. 514.)

The amendment made to this section by the Laws of 1916 was intended to exclude actions to recover damages for loss of services, for an injury for which no compensation is provided, and actions by dependents who receive no compensation. As Section 15 was also amended to authorize an award of compensation for disfigurement, the amendment bars such actions. In the absence of any provision in lieu of damages, the amendment will doubtless have no effect upon actions to recover for loss of services and to recover damages by dependents who receive no compensation. As to the latter class of cases, see Part I, Sec. 14.

§ 12. Compensation not allowed for first two weeks. No compensation shall be allowed for the first fourteen

days of disability, except the benefits provided for in section thirteen of this chapter.

The

§ 13. Treatment and care of injured employees. employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicines, crutches and apparatus as may be required or be requested by the employee, during sixty days after the injury. If the employer fail to provide the same, the injured employee may do so at the expense of the employer. The employee shall not be entitled to recover any amount expended by him for such treatment or services unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so. All fees and other charges for such treatment and services shall be subject to regulation by the commission as provided in section tweny-four of this chapter, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living. (The Commission has ruled that it has no jurisdiction in relation to medical services except to regulate the reasonableness of the charges as provided by this section and approve of claims for such services as provided by Section 24. After the medical fees and charges have been regulated and approved by the Commission, the physician must enforce his claim by suit.)

Where the injured workman requests the employer to furnish medical services; refuses the services of the physician selected by the employer and employs his own physician, the employer is not liable for the expenses of such medical treatment.

Keigher vs. General Electric Company, App. Div., Third Dept., May 2, 1916, opinions by Cochrane, J., and Kellogg, P. J.

Where the Commission has approved the account of a physician for medical services procured by the employee and the amount is treated as part of the compensation awarded to the employee, the physician has no right of action against the employer for such medical services, although the employee has assigned to the physician the

portion of his award included as compensation for medical services.

Bloom vs. Jaffe, 94 Misc. 222; 157 N. Y. Supp. 926.

In an action by a hospital to recover its charges for the care of a minor employee of defendant who had suffered personal injury, not based on the Workmen's Compensation Act, the plaintiff must show by fair prependerance of evidence an express or implied contract that defendant would pay such fees.

Homeopathic Hospital of Albany vs. Chalmers, 157 N. Y. Supp. 1000.

§ 14. Weekly wages basis of compensation. Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation or death benefits, and shall be determined as follows:

1. If the injured employee shall have worked in the employment in which he was working at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.

NOTE: The Commission has ruled that this subdivision cannot reasonably and fairly be applied where the employee works Sundays as well as week days.

After an investigation it was determined that such employees worked 332 days per year upon an average and this numeral is used in computing the average annual earnings of employees who work seven days per week.

(For a case in which this ruling was applied, which is now on appeal, see Claim No. 29483, Lamont Prentiss vs. New York State Railways Co., State Indus. Com., November 15, 1915.)

Where an employee who was usually employed as a skilled workman at the rate of $4 per day but at the time of the injury because of slack work, was working as a

laborer at the rate of $2 per day, the compensation was based upon the $2 per day rate of wages.

Claim No. 30288, Edward Burke, Matter of vs. Industrial Engineering Co., Workmen's Compensation Com., Feb. 8, 1915.

2. If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.

The average annual earnings of extra employees who work as the occasion requires when called upon by the employer are determined by the rate of wages paid to regular employees of the same class.

Claim No. 36456, Christopher Fagan, Matter of vs. United Traction Co., State Industrial Commission, February 23, 1916.

3. If either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident;

NOTE: This subdivision applies to what is known as seasonable employments which are only operated during a portion of the year. The Commission, however, may at any time resort to this subdivision in any individual claim if the method prescribed by the two preceding subdivisions cannot reasonably and fairly be applied.

For a case in which an award of compensation was upheld under subdivision 3, see Rhyner, Matter of vs. Huber Bldg. Co., 171 App. Div. 71; 156 N. Y. Supp.