§ 2. Plan and purpose of the compensation law. Under the general plan of the compensation statute, employers are required to pay or provide a prescribed compensation based upon the earnings of the employee for disability or death due to accidental injuries arising out of and in the course of certain enumerated hazardous employments. The employer has the option of giving security for the payment of compensation by contributing premiums to a State Insurance Fund created by the Act; by insuring with any stock corporation, or mutual association authorized to write compensation insurance, or by furnishing satisfactory proof to the Commission of his financial ability to pay compensation directly to his employees without insuring. If he fails to exercise either of these options, he is liable to a penalty equal to the premium payable to the State Fund and is subject to a suit for damages upon the part of the injured employee, or in case of death, by his legal representative or dependents, in which he is deprived of the defenses of contributory negligence, assumed risk and the negligence of fellow-servants, and since the amendments of 1916 is guilty of a misdemeanor. If he gives security for the payment of compensation, he is relieved from liability, other than compensation, for personal injuries or death sustained by employees who come within the provisions of the statute.

Payment of compensation is required without regard to fault either upon the part of the employer or the employee, except when the injury is due solely to the intoxication of the employee or is occasioned by his wilful intention to bring about the injury or death of himself or another. Rules of damages do not apply to compensation cases nor is the determination of claims governed by common law or statutory rules of evidence. A Commission is created to administer the Act and its decision is final upon all questions of fact.' As stated by the Supreme Court, "It was the purpose of the Legislature to create a tribunal to do rough justice-speedy, sum'Compensation Law, Section 20. Iron Works, 167 App. Div. 526; 153 Matter of Goldstein vs. Center N. Y. Supp. 224.

mary, informal, untechnical." Appeals may be taken on questions of law to the Appellate Division of the Supreme Court, Third Department. While the decision of the Commission is final upon questions of fact, the Courts on appeal may examine and take into account the evidence adduced, as supplementing the findings of fact, and in all cases, the correctness of the determination of the Commission as to the application of the law to the injury upon which the claim is based remains a question for judicial review."

The purpose of the statute is elaborately explained in the following extract from the opinion written by Supreme Court Justice John M. Woodward in the case of Rheinwald vs. Builders Brick & Supply Co., 168 App. Div. 425; 153 N. Y. Supp. 598:

"The Workmen's Compensation Law must in fairness be deemed to have been enacted in furtherance of a legislative determination, enforced by explicit mandate of the people through amendment of the State constitution, that a new and different scheme and basis of indemnity for industrial accidents should be adopted in this State, in the light of the social experience of other commonwealths and countries. Injuries sustained by those who perform the manual and mechanical tasks of an industry must be deemed to have been intended by this statute to be made a social risk, a liability of the industry, a charge upon the production cost of the article manufactured or the service rendered. Hitherto the rule of our statute and fundamental law had been that any right of recovery for industrial accidents must arise from a breach of the master's duty as to care and safeguards, and accordingly was limited by whatever contractual relation existed between the person injured and the person whose breach of duty was the efficient cause of injury. For this historic concept of liability springing from

Matter of Rhyner vs. Huber Co., 171 App. Div. 71; 156 N. Y. Supp. 903.

Matter of Gleisner vs. Gross & Herbener, 170 App. Div. 37; 155 N. Y. Supp. 946.

omission of legal duty created by contractual relation there has been substituted an application of the social principle that regardless of duty and regardless of fault, the expenses and loss of earnings resultant from occupational injury to a workman engaged in carrying on an inherently hazardous business or avocation of an employer should be paid in the first instance by the employer and by him made a charge against the operating costs of the business. In place of the traditional juristic rule that the master must respond in damages when his servant is injured through the master's fault, and that otherwise the servant must go unrecompensed and the loss be borne by him alone, the people and legislature have now put in force the changed concept that the trade product should be charged with all consequences of inherent trade hazards and that losses to individual workers through disability while engaged in the service of the proprietor of the business, should be distributed among all its consumers or patrons, rather than left to operate ruinously against the disabled employee or the solitary employer."

§ 3. Employments subject to the Act. Compensation laws differ widely as to the field of occupations which are subject to their provisions. In some states the law is general in its terms and applies to all employments except those expressly exempted. Most statutes of this kind exempt farm laborers, domestic servants and casual employees. Other laws apply only to hazardous employments named in the statute itself. The New York law is of the latter class. Its application is limited to the hazardous employment enumerated in Section 2 and divided into 42 groups. After June 1, 1916, any employment can be made subject to the act by joint election of the employer and his employees. An employer under the New York act is one employing workmen in a hazardous employment and an employee entitled to its benefits is one working in such hazardous employment. The act is further limited by the requirement that the

employment in question must be one which is carried on by the employer for pecuniary gain, but this limitation does not apply to municipal employees after June 1, 1916. Farm laborers and domestic servants are exempted.

Generally speaking, two classes of employers are subject to the compensation law. The first class consists of those specifically mentioned in Section 2 and the other class is made up of those engaged in a business which is not included in Section 2, but in connection with which certain workmen are engaged in one or more of the hazardous employments covered by the act. Employers conducting a mercantile business may be given as an example of the class to which the law has this limited application. While the general employees of a mercantile house are not engaged in hazardous work, the workman driving a vehicle would be under the Act. The mercantile business is not classified as hazardous but the driver of the vehicle is performing work declared hazardous by group 41.

(See also Sec. 10 Post.)

§ 4. Injuries subject to the Act. The amendment to the State constitution authorized a compensation law which would apply to injuries received by employees in the course of the employment. The Legislature has limited the application of the statute in this respect by defining injuries as meaning accidental injuries arising out of and in the course of the employment and such disease and infection as may naturally and unavoidably result from such injuries. Three requisites, therefore, must exist before an injury can be regarded as compensatable. The injury must be accidental; it must arise out of the employment and it must have happened in the course of the employment. If any one of the three requisites is absent, no compensation is payable.

The most common definition of the term "accident" as used in compensation statutes is found in a decision by the House of Lords under the compensation law of England in the case of Fenton vs. Thorley 5 W. C. C. I; (1903) A. C. 433. There the term was defined as "an

unlooked for mishap or an untoward event which is not expected nor designed." This definition was based to some extent upon the decision of the United States Supreme Court in the case of U. S. Mutual Accident Association vs. Barry, 131 U. S. 100. The use of the word "designed" in this definition would exclude deliberate injuries such as result from an assault and the House of Lords, in the case of Trim Joint District School vs. Kelley, 7 B. W. C. C. 274, extended the definition to include assault cases.

The English definition of the term "accident" was adopted in New York by the Workmen's Compensation Commission in Matter of Yume vs. Knickerbocker Portland Cement Co., 3 N. Y. St. Dep. Rep. 353, affirmed without opinion, 153 N. Y. Supp. 1151, appeal dismissed 216 N. Y. Memo. 653, and in the Matter of Harnett vs. Thos. J. Steen Building Construction Co., 2 N. Y. St. Dep. Rep. 492, affirmed without opinion 153 N. Y. Supp. 1119, appeal dismissed 216 N. Y. 101. In both of these cases the injuries were due to assaults by fellow employees. It was held that the word "designed" referred to the state of mind of the injured workman and that injuries resulting from the designed assault of a fellow employee were accidental injuries.

The term "arising out of the employment" has been the subject of considerable discussion. Generally speaking, an injury does not arise out of the employment unless it can be traced to some risk which is inherent in the business or to some accident which is the natural result of the employment. The construction of the phrase most widely adopted is taken from a decision by the Supreme Judicial Court of Massachusetts in the case In re Employers Liability Assurance Corporation, 102 N. E. 697; 215 Mass. 497. There the Court said:

"It arises 'out of the employment when there is apparent to the rational mind upon consideration of all the circumstances, a causual connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have