der Group 29. He bought and sold fruit and some or all of the fruit purchased was placed in the storehouse. The employee was a purchasing and sales agent and was injured while engaged in the course of his employment in West Virginia, the Court said:

"I do not think the work in which the claimant was engaged when he received his injury has any logical or appropriate connection with the storage business. That business implies merely the housing and care of property within a storehouse or other appropriate place of deposit. *** And whatever dangers and hazards may be incident to the storage business certainly have no connection with travelling through the country as a purchasing or sales agent. *** It certainly was not the legislative intent in using the word 'storage' and making it a hazardous employment to include therein the duties of a purchasing agent, which differ in no respect merely because the objects of his purchases may find their way into a storage house."

Under this decision a salesman or travelling man injured away from the plant is left to his common law remedy. The risk of injury while travelling does not arise out of any hazardous employment but is common to all.

In a decision handed down by the Appellate Division of the Supreme Court, Third Department, since this work was in press, in Matter of Robert Lyon vs. Windsor & Davis, it was held that a salesman employed by a firm engaged in the manufacture of women's clothing was not entitled to compensation for injuries received by falling while passing through the factory. It was held that "the ordinary activities of salesmanship are not embraced within the manufacture of the article being sold." This decision excludes a salesman from the benefits of the Workmen's Compensation La weven though the injury happens at the plant. In this case the Appellate Division decided that the Compensation Law did not make the employer's business the test and that the benefits of the act had not been conferred upon all employees. It was said, "The employee's right to compen

sation arises when he does work enumerated in the statute." The amendment of the term "employee" by Chapter 622 of the Laws of 1916 was intended to meet this situation and to bring all employees within the protection of the Act where the business is classified as hazardous.

§ 13. Injuries resulting in disfigurement. The Appellate Division of the Supreme Court, Second Department, in the case of Shinnick vs. Clover Farm Co., 169 App. Div. 236; 154 N. Y. Supp. 423; S. C. 152 do. 649, has decided that where the schedules of compensation do not cover the injury suffered by an employee, he does not fall within the purview of the compensation act and cannot claim compensation under it, for the act provides no scale or gauge by which to determine what compensation should be provided. In the case in question, the plaintiff was in the defendant's employ as a driver and was injured by the attack of a horse which resulted in the amputation of a portion of one of plaintiff's ears. The suit was brought for damages and plaintiff's right to recover was upheld for the reason that Section 15 of the compensation act did not provide any fixed compensation for the amputation of an ear and consequent disfigurement. "As to such an injury, therefore," the Court said, "the right to recover remains as it was before the act was passed."

This decision has been the subject of much discussion and criticism. Many students of compensation laws are of the opinion that the New York act can be extended to a case of this character for the reason that such an injury might result in total disability or in death, in which event the right of compensation could not be reasonably disputed. The Shinnick case, however, was passed upon by nine justices of the Supreme Court, all of whom agreed that the injury in question was outside the compensation act and was properly the subject of damages. It must be accepted as the law in relation to injuries of

this character.

Many cases have arisen in which actions have been commenced to recover damages for injuries which have resulted in disfigurement. These actions are supported by the decision in the Shinnick case and also derive sup

port from the amendment to the State constitution under which the compensation act was passed by the Legislature. Literally construed, this amendment to the constitution authorizes the enactment of a compensation statute excluding all other remedies only where compensation is provided for the injury in question. To exclude the damage suit, the Legislature must provide a substitute in the shape of compensation. The term "compensation" as defined by subdivision 6 of Section. 3 of the act, does not include the medical services which the employer is required to provide under Section 13, and such medical services are not considered as compensation.

The Shinnick case was decided July 9, 1915. Four days later the Court of Appeals handed down its decision upholding the constitutionality of the compensation law generally in the Jensen case (215 N. Y. 514). Although the point was not squarely decided, the decision of the Court of Appeals may be construed as holding that the compensation law is exclusive and in full substitution for any action for damages, even though no compensation is provided for the specific injury. This view of the decision of the Court of Appeals was taken by Supreme Court Justice William S. Andrews in a decision handed down in Special Term, March 22, 1916, in the case of Michael Connors vs. Semet-Solvay Co., in which he refused to follow the Shinnick case. In the Connors case the plaintiff had received compensation and then sued for damages for disfigurement and pain and suffering.

Under an amendment to Section 15, which became effective June 1, 1916, the Commission is now authorized to award compensation for injuries resulting in serious facial or head disfigurement not to exceed thirty-five hundred dollars. The Shinnick case is, therefore, no longer an authority in support of an action to recover damages for disfigurement as to any injury occurring subsequent to June 1, 1916. An amendment to Section 11 is intended to make the law exclusive even as to injuries for which no compensation is provided. As al

ready pointed out, such a provision is ineffectual under the State constitution.

§14. Dependents who receive no compensation. As pointed out in Section 5, the compensation where the injury results in death, is limited to the dependents mentioned in Section 16 of the compensation law and many cases will arise where the deceased workman leaves dependent relatives surviving who cannot be awarded compensation under the act. At common law there was no right of action where the death of a person was due to negligence. The right was first created by Chapter 450 of the Laws of 1847 and since 1895 a provision has been contained in the constitution (Art. 1, Sec. 18) which prohibits the Legislature from abrogating the right of action to recover damages in death cases. The constitutional amendment (Art. 1, Sec. 19) under which the compensation law is authorized, provides in effect that nothing contained in the constitution shall prohibit the Legislature from the enactment of a law requiring the payment of compensation without regard to fault, or to limit the power of the Legislature "to provide that the right of such compensation and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries."

The rule is well settled that all sections of the constitution must be construed together to obtain its true meaning and when Sections 18 and 19 are both considered, it would seem to follow that the legislature cannot take away the right to recover damages in death cases unless a substitute is provided therefor. The compensation law is exclusive of all other rights and remedies as to the dependents mentioned in Section 16, but the right to recover damages as guaranteed by Section 18 of the Constitution, still remains as to the dependents for whom compensation is omitted.

In the case of Shanahan vs. Monarch Engineering Co., 156 N. Y. Supp. 143, the Supreme Court held that damages may be recovered on behalf of brothers and sisters who are the only next of kin of the deceased workman. It was held that the compensation law makes no

provision for the payment of any benefit to the surviving brothers and sisters and that as to them, the right to sue for damages still remains. In Matter of Friscia vs. Drake Brothers, (Sec. 5 infra), it was decided that compensation could be awarded to the parents of a deceased workman notwithstanding the fact that he left him surviving no wife or children. Under this decision brothers and sisters under 18 years of age would be entitled to compensation where there is no surviving wife or children or where the compensation payable to surviving wife and children does not equal 66 2/3% of the average weekly wage of the deceased. The Shanahan case is somewhat contrary to the Friscia case, but it is regarded as an authority in support of the right of dependents to sue for damages in all cases where such dependents receive no compensation. It may frequently happen that a child, sister or brother over 18 years of age, or some other next of kin not named in the statute, is entirely dependent upon the deceased workman and will suffer serious pecuniary loss by his death.

Section 11 of the compensation act declares the liability for the payment of compensation as prescribed by Section 10 shall be exclusive and in place of any other liability whatsoever, to such employee, his personal representatives, husband, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death. The part in italics was added to Section 11 by the amendments of 1916, and among other things was intended to meet the decision in the Shanahan case. While the language of the section is explicit, it will doubtless be held unconstitutional as to dependents for whom no benefits are provided.

§ 15. Injuries received by office employees. Ac cording to a ruling made by the State Workmen's Compensation Commission, office employees who work at the plant where a hazardous employment is conducted, are within the protection of the compensation law; and office employees who work in a separate office building, although in the service of an employer carrying on a