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WILLS (Continued).

case the son of the testatrix marries a certain woman, the trustee named in the will shall pay to him thereafter annually a less sum than the amount thereinbefore named, operated only upon the trustee, and where the son married such woman before the death of the testatrix, the contingency upon which such inhibition was to become

effective was removed. (Id.) 13. ESTATES OF DECEASED PERSONS—TRUST UNDER WILL-ACCUMULA

TION OF INCOME BEYOND MINORITY_VOID PROVISION-GIFT OF INCOME VALID.—Direction in a trust created under & will for accumulations of income from the trust estate beyond the age of minority of the beneficiary is void under section 723 of the Civil Code, but the gift of the income is valid under section 733 of such code. (Ia.)

See Estates of Deceased Persons, 3, 8, 15, 17.

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WORKMEN'S COMPENSATION ACT. 1. FLAGMAN EMPLOYED BY Two RAILROAD COMPANIES—RELATIONSHIP

or EMPLOYER AND EMPLOYEE AS TO EACH COMPANY.-Where one railroad carrier engaged indistinguishably in intrastate and suburban traffic employed a flagman at a crossing, and another rail. road carrier engaged solely in intrastate commerce and operating its road on parallel tracks paid one-half of the monthly salary of such Aagman, the flagman acting for both carriers, the relation of employer and employee existed between each carrier and the fagman, within the meaning of the terms as defined in the Workmen's Compensation, Insurance and Safety Act. (Terminal

Rys. v. Industrial Acc. Com., 121.) 2. KILLING OF FLAGMAN JURISDICTION OF COMMISSION RIGHT TO

AWARD COMPENSATION AGAINST INTRASTATE CARRIER.—Where a flagman thus employed was killed by a train of the interstate car. rier at a time when a train of the intrastate carrier was also arriving, the jurisdiction of the Industrial Accident Commission to award compensation was not lost as to the intrastate carrier by reason of the federal employer's liability law, which excluded the jurisdiction of the commission to award compensation against the

interstate carrier. (Id.) 3. JURISDICTION OF COMMISSION—EXCLUSION BY FEDERAL EMPLOYERS'

LIABILITY LAW_EXTENT OF.-The jurisdiction of the Industrial Accident Commission is excluded by the federal employers' liability law only as to such matters as are covered by the act, and necessarily the federal act cannot be held to affect the rights under the state law of an employee of a common carrier by railroad in no way engaged in interstate commerce, or the rights of his de. pendents in the event of his death, to obtain compensation under such state law on account of injuries or death occurring iu the WORKMEN'S COMPENSATION ACT (Continued).

course of his employment by such carrier, and arising out of such

employment. (Id.) 4. RELEASE OF INTERSTATE CARRIER/RIGHT TO COMPENSATION UNDER

STATE ACT.-A written release executed by the surviving wife of a flagman thus employed to the interstate carrier releasing it from all claims and causes of action on account of the death of her husband, is invalid, in so far as any claim under the Work. men's Compensation Act is concerned, where it did not provide for the payment of full compensation in accordance with the provisions

of the act, and was never approved by the commission. (Id.) 5. HEARING BEFORE REFEREE OF COMMISSION—NOTICE AND REPRESEN

TATION-RIGHT OF INSURANCE CARRIER.—Where a proceeding for compensation under the Workmen's Compensation Act is heard before a referee of the commission without notice to the insurance carrier and without its being represented, and at the hearing testimony directly controverting the contention of the carrier is presented without any opportunity for cross-examination, the commission should reopen the case to permit such cross-examination and the introduction of counter-testimony, unless there is no possibility of such examination or testimony changing the result.

(Ocean A. & G. Corp. v. Industrial Acc. Com., 389.) 6. ATTEMPT TO RESCUE CHILD-BACKING OF AUTOMOBILE-INJURY IN

COURSE OF EMPLOYMENT. — Under the Workmen's Compensation Act, an employee was injured in the course of his employment, where he, at the time of the accident, was at his employer's barn stabling horses in the course of his employment, and was in. jured in an attempt to rescue a child that was in danger of being run down on his employer's premises by an automobile driven by the president of his employer, who was there on the employer's

business. (Id.) 7. HEARING WITHOUT NOTICE TO CARRIER REOPENING OF CASE —

PROPER REFUSAL.-An insurance carrier who was not present or represented or given an opportunity to be present or represented at a hearing before a referee of the commission, at which evidence was introduced, is not entitled to an annulment of the commission's award in order to reopen the matter and permit the carrier to controvert such evidence, where a rehearing before the commission

was not asked for that purpose. (Id.) 8. DEPOSITION OF PHYSICIAN-EXTENT OF INJURIES—ADMISSIBILITY

AGAINST EMPLOYER AND CARRIER.—Under section 60, subdivision (a), of the Workmen's Compensation Act of 1917 (Stats. 1917, p. 831), providing no award shall be invalidated because of the admission of any evidence not admissible under the common law or statutory rules of evidence and procedure, a deposition taken in an action at law to which neither the employer or insur

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WORK MEN'S COMPENSATION ACT (Continued).

enco carrier was a party, is admissible in a proceeding before a referee of the commission as against the employer and carrier, although as to them the deposition is hearsay and would not be

admissible under the usual rules of evidence. (Id.) 9. INJURY TO MINOR EMPLOYEE—VIOLATION OF WARNING SIGN-LACK

OF KNOWLEDGE OF POSSIBLE CONSEQUENCES FROM DISOBEDIENCERIGHT TO COMPENSATION.-Where a young man nearly eighteen years of age while wiping the vertical shaft of a drilling-machine when it was slowly revolving, in violation of a printed warning against the wiping of the machine in motion, made a dive with his cloth at a strea.n of grease running down the framework of the machine and had his hand drawn into the machine result. ing in the loss of two fingers, the finding of the

commis. sion that "neither of the acts of cleaning said drill wiping said shaft was intentionally and deliberately disobedient; that neither of said acts was an act of serious and willful misconduct, and the said injury was not caused by the serious and willful misconduct of the employee,” is justified, in view of the evidence that the applicant, while he knew of the existence of the warning sign, did not know of the consequences likely to result from disobeying it. (Railroad Co. v. Industrial

Acc. Com., 416.) 10. AVERAGE ANNUAL EARNINGS OF INJURED MINOR—BASIS OF COM

PENSATION.—Computation of the average annual earnings of an injured minor based not upon the probable wage of the minor at the time he should reach the age of twenty-one years, but upon that which he would be likely to earn within a reasonable time after attaining the age of twenty-one years, is not justified by the

statute. (Id.) 11. RIGHTS OF APPLICANT FOR COMPENSATION-LAW IN FORCE AT TIME

OF INJURY.—The right of an applicant for compensation under the Workmen's Compensation Act must be measured by the act in force at the time of the injury. (Hyman Bros. Co. v. Industrial WORKMEN'S COMPENSATION ACT (Continued).

Acc. Com., 423.) 12. WILLFUL MISCONDUCT DETERMINATION OF QUESTION JURISDIC

TION OF COMMISSION.—The determination as to whether or not the described actions of an employee amount to willful misconduct goes to the jurisdiction of the Industrial Accident Commission.

(Id.) 13. WILLFUL MISCONDUCT DEFINED.—Willful misconduct means

thing more than negligence, and does not include every viola. tion or disregard of a rule, but it cannot be doubted that a workman who violates a reasonable rule made for his own protection from serious bodily injury or death is guilty of misconduct and that where the workman deliberately violates the rule, with knowledge

some

of its existence and of the dangers accompanying its violation,

he is guilty of willful misconduct. (Id.) 14. INJURY TO MINOR EMPLOYEE — REACHING OF HAND INTO Mov

ING PRESS-VIOLATION OF RULE SUDDEN IMPULSE-RIGHT TO Com. PENSATION.—Under the Workmen's Compensation Act, an em. ployee of the age of twenty years who was injured while operating & printing-press by having his hand caught between the bed of the press and the platen in reaching into the machine when in motion to remove some fallen cards, was not guilty of willful misconduct, notwithstanding warning had been given him to never reach into the machine in motion, where it appeared that at the rate of the running of the press, the operator upon seeing a card fall was given but the smallest degree of time for determination as to

whether or not he should reach for the same. (Id.) 15. AVERAGE WEEKLY EARNINGS OF INJURED EMPLOYEE — BASIS OF

COMPUTATION.—Under section 17c of the Workmen's Compensation Act, the Industrial Accident Commission has no power in the case of an injury to an employee in his twenty-first year to compute the compensation on the basis of probable wages which the employee might obtain long after reaching the age of twenty-one years, since the word "after" as used in such section providing if the injured employee is under twenty-one years his average weekly earnings shall be deemed to be the weekly sum that under ordinary circumstances he would probably be able to earn 'after attaining the age of twenty-one years," means "at” the age of

twenty-one years. (10.) 16. RELATIONSHIP OF EMPLOYER AND EMPLOYEE—HEARSAY TESTIMONY

-FINDING CONCLUSIVE ON REVIEWING COURT.-In view of section 60 (a) of the Workmen's Compensation, Insurance and Safety Act (Stats. 1917, p. 871), a finding of the Industrial Accident Commission of the existence of the relationship of employer and employee based upon hearsay evidence is binding upon the reviewing

court. (Pacific G. & E. Co. v. Industrial Acc. Com., 497.) 17. AWARDING COMPENSATION AGAINST PERSON OTHER THAN EM

PLOYER-PROVISION OF 1917 UNCONSTITUTIONAL.-Section 25 of the Workmen's Compensation Act of 1917 (Stats. 1917, p. 853) is unconstitutional in so far as it attempts to authorize the awarding of compensation against a third person not an employer, for the same reason that the previous statute was unconstitutional, and the amendment to section 21 of article XX of the constitution in 1918 does not ratify the legislation condemned as unconstitutional in

Carstens v. Pillsbury, 172 Cal 572. (Id.) 18. COMPENSATION FOR DEATH OF EMPLOYEE-DEPENDENCY OF WOMAN

LIVING WITH DECEASED AS WIFE_MEMBER OF HOUSEHOLD IN Goon
FAITH.-In view of subsections b and c of subdivision 2 of sec.

WORKMEN'S COMPENSATION ACT (Continued).

tion 14 of the Workmen's Compensation Act of 1917 (Stats. 1917, p. 844), the Industrial Accident Commission properly awarded compensation for the death of an employee to a woman living with him at the time of his death as his wife, although not legally married to him, on the theory that she was wholly dependent upon him for her support, where it was shown that they were ignorant persons, unacquainted with the legal requirements of marriage, and both believed that a marriage license which they had procured was sufficient in itself to constitute a valid marriage, and that thereafter they assumed the relation of husband and wife and she continued to be in good faith a member of his household until the time of his death. (Temescal Rock Co. V.

Industrial Acc. Com., 637.) 19. DETERMINATION OF DEPENDENCY — INAPPLICABILITY OF MARRIAGE

LAW POWER OF LEGISLATURE.—It was competent for the legis lature to make the requirement of a solemnization as essential to a valid marriage inapplicable to the determination by the Industrial Accident Commission of the question of dependency necessary to authorize compensation to a person injured by the death of an employee, and this it has done by the provisions of section 14 of the Workmen's Compensation Act of 1917, with respect to one who at the time of the injury was in good faith a member of the house. hold of the employee. (Id.)

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