business within the act, are not within its protection. As to injuries received by the latter class, it is apparent that the employer is not liable for compensation and that the remedy of the employee is to sue for damages if the injuries are due to the negligence of his employer.

The ruling of the Commission in relation to office employees where the office is located at the plant has never been passed upon by the Courts. The trend of decisions in other cases, however, would seem to indicate that an office employee is not entitled to compensation in any event, even where the office is located at the plant, unless the injury can be traced to some risk of the hazardous employment. In the Matter of DeVoe vs. New York State Railways, 169 App. Div. 472; 155 N. Y. Supp. 12, the Justice writing the opinion laid down the rule that the compensation law did not apply to employees generally, even of a particular group, but only while the employee was engaged in the hazardous employment. The following quotation from the opinion in this case seems to clearly indicate that the employer is under no obligation to pay compensation to office employees:

"The employee of a street railway, for instance, who is engaged in bookkeeping or in running errands or in doing other work disconnected with the physical operation of the railroad, would not be 'engaged in the following hazardous employment,' nor would he be entitled to compensation, though the accident might be said to have arisen out of and in the course of his employment ***. The question is, not whether he was employed by a street railway corporation, but whether he was engaged in the following hazardous employments."

§ 16. Officers of corporations. In nearly all jurisdictions it has been decided that an officer of a corporation is not an employee within the ordinary definition of the latter term and that statutes beneficial in character relating to "employees" have no application to officers of corporations. The Workmen's Compensation Commission was advised in making rules for the interpretation of the statute that the distinction between the term

"employer" and "employee" as used in the compensation law was similar to the distinction between the term "master" and "servant" and that officers of corporations could not be regarded as employees within the meaning of the act. This rule has been greatly modified in practice.

In all cases where an officer of the corporation was performing work of a character usually performed by a superintendent, foreman, mechanic or ordinary workman, the officer was held to be an employee and entitled to the benefits of the act. Up to the present time, these decisions have not been questioned by employers or insurance carriers. In a case where the deceased employee was president of a local telephone company and met his death while performing work as a lineman, the widow was awarded compensation.' In another case, where the employer was secretary and general manager of the company, compensation was awarded for an injury received while he was engaged in superintending the plant. In still another case, compensation was awarded for the amputation of fingers due to an injury received while the officer of the company was operating machinery. A similar rule has been adopted in Connecticut, where compensation was awarded to an officer who received injuries while acting as salesman for his company.

The New York State Industrial Commission has also decided that the ownership by the injured workman of practically all of the stock in a corporation does not preclude him from receiving compensation. This was held in the Matter of Kennedy vs. Kennedy Mfg. & Engineering Co. (The Bulletin, Vol. 1, No. 5, p. 12), decided January 8, 1916, in which the injured workman had retired from the office of president and was acting as consulting engineer. He was the owner of all but 7%% of the stock of the company and it was decided that his ownership of practically the entire amount of stock did not change his status as an employee of the

Claim No. 15410, Matter of A. Foster Brewster, deceased.

'Claim No. 6230, Matter of John H. Wagner.

'Claim No. 42660, Matter of Joseph Clements.

company. In this case an award of compensation was denied, however, because he continued to draw his regular salary notwithstanding the injury and suffered no pecuniary loss.

§ 17. Damages for loss of services. At common law in the case of an injury to a boy or girl under 21 years of age, a right of action existed on behalf of the person injured, and the parents had another and separate right of action for the damages sustained by them for loss of services. There was also a double remedy at common law in the case of an injury received by a married woman. She had the right to sue for damages for personal injuries and the husband could recover for the loss of her services and for medical treatment.

In the State of Massachusetts, the Supreme Judicial Court, in the case of King vs. The Viscolloid Co., 219 Mass. 420; 106 N. E. 988, decided that the mother could recover damages for loss of services notwithstanding the fact that the boy who was injured had received compensation under the Workmen's Compensation Law of that state. It was also held that a provision requiring the employer to pay medical expenses did not take away the parents' remedy, but only reduced the amount of damages which the parent could otherwise recover.

Section 10 of the Workmen's Compensation act requires the employer to pay or provide compensation according to the schedules of the act and Section 11 makes this liability exclusive. The right to recover damages for loss of services was not expressly taken away until Section 11 was amended in 1916 and damages could be recovered for loss of services as to any accident which happened prior to June 1, 1916. The question is not free from doubt even under the amended law. To make the act entirely exclusive a remedy should have been provided in lieu of the former action for loss of services.

§ 18. Occupational diseases. Only accidental injuries can be made the basis of compensation. The use of the word "accident" excludes what is known as occupational diseases, which include lead poisoning, zinc poisoning and any injury, such as an injury to the eye or the

lungs, which is not due to some particular accident but to long and continued exposure to some condition or hazard under which the work is being performed. In the State of Massachusetts where compensation is not limited to accidental injuries, disability from lead poisoning was held compensatable' but under the New York Act all claims for disability due to occupational diseases are excluded.

In a case where there was an injury to the eye due to the fact that the employee was required to work before a bright light, and in another case where blood poisoning was contracted from dust particles, and in all cases of occupational poisoning compensation was denied by the New York Commissions. In the following cases, which may be regarded as border line cases, compensation was allowed: where pulmonary tuberculosis was caused by falling into water; where disability was due to freezing;3 where the employee died as a result of a disease caused by contact with poison ivy; where the disability was due to anthrax contracted through an abrasion of the skin while handling wool;" and where the injured workman became insane as the result of a nervous shock received in an accident. In another case (Matter of McMurray, 3 N. Y. St. Dep. Rep. 395) compensation was awarded where the workman died from heart disease due to exhaustion from overwork. This latter case would probably have been reversed had an appeal been taken. In all of the other cases the disability was traceable to a particular event which brought the injury within the definition of the term "accidental."

Although compensation is not payable for an injury which is classed as an occupational or industrial disease, the employer is liable in damages if the injury can be

In re Hurle, 217 Mass. 223; 104 N. E. 336.

In re Johnson, 217 Mass. 378; 104 N. E. 735.

'Matter of Rist vs. Larkin & Sangster, 171 App. Div. 108; 156 N. Y. Supp. 875.

Matter of Aylesworth vs. Phoenix Cheese Co., 8 N. Y. St. Dep. Rep.

Matter of Cole, 4 N. Y. St. Dep. Rep. 348.

Matter of Plass vs. Cent. R. R. of New England, 169 App. Div. 826; 155 N. Y. Supp. 854.

Matter of Henry, Claim No. 65555, State Ind. Com.

6

Matter of McMahon, 5 N. Y. St. Dep. Rep. 109.

traced to a violation of law or to lack of proper safeguards which would have resulted in its prevention. The employer would be liable for damages where pulmonary tuberculosis is contracted by reason of the failure to provide suitable space for employees in violation of the Labor Law. So also the employer would be liable at common law where the injury or disease, although due to no accident, could have been prevented by the use of proper and suitable safeguards or appliances for carrying on the work.

19. Injuries received outside the State. In the Matter of Valentine vs. Smith Angevine Co., 2 N. Y. St. Dep. Rep. 461, it was decided by the Workmen's Compensation Commission that compensation was payable where the injury was received while the workman was temporarily in another state in the course of his employment. This decision was affirmed in Matter of Post vs. Burger & Gohlke, 168 App. Div. 403; 153 N. Y. Supp. 505; 216 N. Y. 544. The Court of Appeals held that the Legislature intended to read the workmen's compensation law into the contract of employment and that the employer and employee are bound thereby without reference to the place where the injury happens. Attention was called to the wording of the statute under which the act was extended to injuries which happen "away from the plant," and it was decided that under the general purpose of the law, which was to prevent the injured workmen and their dependents from becoming objects of charity and to make the compensation a part of the expenses of the hazardous business, compensation should be payable although the injured workman was temporarily in a foreign state when injured.

Many cases will arise where the facts are different from those outlined in the Post case. Since this decision, the State Industrial Commission has denied compensation in File No. 291, Lloyd vs. Power Specialty Co., a case where the contract of hiring was made in New York State and the employee, who was a resident of New Jersey, was sent to West Virginia to perform work in which he received an injury which proved to be fatal. It