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after the day's work;16 where, while delivering ice, he left his team and started to a house for shelter; while on his way to procure material to be used in his work;18 while going from one job to another for the purpose of inspection."

Riding in Own Conveyance-As a rule, when the employee is traveling to or from work in a conveyance supplied by him or a third person, and he has gotten beyond the sphere of his employment so that he is no longer exposed to the dangers of such employment, he is not within the protection of the compensation laws. On the other hand, the employment may be of such a nature that the employee is in the course thereof while traveling to the place of work. Such kind of employment was that of a millwright whose duties required him to go to places as directed by his employer to install machinery. At the time in question he was going to a certain town where machinery was to be installed, riding in an automobile belonging to his son, when the automobile upset and he was injured. On such occasions he was allowed to use any means of transportation he wished, and was paid for the time on the road, and his traveling expenses were paid. On the present occasion the employer's manager was preceding him, and directing him and his son on the journey by showing them the road.

It was held that he could recover compensation.20

Where an employee was killed while returning to a city to spend Sunday from a town to which he had been sent to set up farm machinery, in violation of instructions to remain there until he had finished his

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work, such accident did not arise out of nor in the course of the employment.21

Deceased, employee of a refinery, was on his way home, riding his motorcycle, and when about three-fourths of a mile from the refinery gate, he collided with an automobile and was killed. The street in question was a public one, and was used by a large number of refinery employees, but it was not the only route that deceased could have gone. Held, that no recovery could be had, as deceased had left the locality and sphere of his employment, and was doing nothing within the scope of his employment, and was not at the time under the direction or control of his employer.22

Where a workman, on his way home over a route across his employer's property, which he was allowed to use, tried to board a train moving up an incline, and was killed in the attempt, there being a rule that no one except those in charge of a train should, without special permission, ride on it when moving on an incline, the accident did not arise out of the employment.23

A solicitor's clerk was also clerk to the justices of a court which was held about 10 miles from the solicitor's office. He had to attend court on his employer's business and generally went there and returned by train, but sometimes traveled on a bicycle, to his employer's knowledge and without his disapproval. In returning from the court to his employer's office on a bicycle the clerk collided with a motor car and received injuries from which he died. It was held that the accident did not arise out of nor in the course of the employment.24

Where, however, the evidence showed without dispute that the employee was al

(21) International Harvester Co. V. Industrial Board, 282 Ill. 489, 118 N. E. 711, 1 W. C. L. J. 762.

(22) American Indemnity Co. v. Dinkins, Tex. Civ. App., 211 S. W. 949, 4 W. C. L. J. 294, 18 N. C. C. A. 1034.

(23) Pope v. Hill's Plymouth Co. (1912). W. C. Rep. 15, 105 L. T. 678, 5 B. W. C. C. 175, 3 N. C. C. A. 273, aff'g 102 L. T. 632, 3 B. W. C. C. 339.

(24) Read v. Baker, 140 L. T. 466, 32 T. L. Rep. 382, 60 Sol. J. 402, 12 N. C. C. A. 383.

lowed to ride to and from work on his bicycle on the employer's time, compensation was allowed for an injury sustained by the employee while riding to work.25

A member of a city fire department who was injured while returning to his work on a motorcycle after his midday meal, was not within this provision of the statute.26

A boy employed in a general retail store was injured while riding his motorcycle on his way from home to the store. He was intending to stop at a market on his route to the store to buy fresh vegetables for his employer, an errand which he regularly performed, but the accident occurred before he had reached the market. Held, that the risk resulting in the accident had no connection with the employment.27

Where one was employed to haul logs from the woods to a mill, using his own. team and sleigh, and was injured on his way from his home to the woods to secure the first load for the day, it was held that the injury arose out of and in the course of the employment. "Deceased was following out instructions previously given by starting for the place where he was to perform the service for which the plaintiff employed him."28

In Conveyance of Employer-Where employees are transported to and from their place of work by the employer, as part of their contract of employment, the period of service continues during the time of transportation.29

The rule has been laid down that the employer's liability in such cases depends upon whether the conveyance has been provided by him, after the real beginning of the em

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ployment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which the employees are required, or as a matter of right permitted, to use by virtue of that contract.30

Injury to tobacco plantation workers after they had entered into a contract of employment, and while being driven to the place of work in an automobile furnished. by the employer, pursuant to the employment contract, arose out of and in the course of the employment.3

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A plumber, employed to make private. connections with city sewers and water pipes, who was injured when the truck, in which he was going to get pipe left over at another job, was struck by a street car, was injured by an accident arising out of and in the course of the employment.32

It appeared that the employers, as part of the contract with their employees, agreed to pay them 90 cents a day as transportation charges to and from the place of work. This was in addition to their regular wages. The employers arranged with one of the workmen, who had an automobile, to carry the others. While returning from work, the automobile was struck by a train and the workmen were killed. Held, that the accident arose out of and in the course of the employment. "Transportation to and from his work was incidental to his employment; hence the employment continued during the transportation in the same way as during the work. The injury occurring during the transportation occurred within the period of his employment, and at a place where the decedent had a right to be, and while he was doing something incidental to

(30)

Donovan's Case, 217 Mass. 78, 104 N. E. 431, Ann. Cas. 1915C 778; Scalia v. American Sumatra Tobacco Co., Conn., 105 Atl. 346, 3W, C. L. J. 230; Swanson v. Latham, 92 Conn. 87, 101 Atl. 492; Baudry v. Watkins, 191 Mich. 445, 158 N. W. 16, L. R. A. 1916F 576; Kunze v. Detroit Shade Tree Co., 192 Mich. 435, 158 N. W. 851, L. R. A. 1917A 252.

(31) Scalia V. American Sumatra Tobacco Co., Conn., 105 Atl, 346, 3 W. C. L. J. 230.

(32) Scully v. Industrial Com'n., 284 Ill. 567, 120 N. E. 492, 3 W. C. L. J. 30.

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One employed as garbage collector and who was injured as a result of his horses becoming frightened while he was taking his equipment to the barn of his employer, after making the last load for the day, was within the protection of the compensation law.34

Injuries incurred by an employee while riding from one job to another in a conveyance furnished by the employer, are compensable.35

But not when the employee rides on the conveyance in violation of the employer's instructions.36

Walking to and from work-It was customary for an employee, sent to secure samples of fat for his employer, when he could not finish his inspection and return to the plant of the employer before 6 p. m., to bring the samples the following morning. On the occasion in question he left the plant of another and was going home after 7:15 p. m., after securing the necessary samples, when he was injured. Held, that the accident did not arise out of and in the course of his employment, whether or not he was carrying samples when injured.37

A member of a section crew left his toolhouse at noon and started for his home for his midday meal, walking along the track to a station, and on the way was struck

(33) Swanson v. Latham, 92 Conn., 87, 101 Atl. 492.

(34) Milwaukee v. Fera, Wis., 174 N. W. 926. (35) Yeargin v. Bode, Ind. Indus. Bd. No. 62, 12 N. C. C. A. 371; Mack v. Pacific T. & T. Co., 1 Cal. Ind. Acc. Com'n. 44, 12 N. C. C. A. 373.

(36) Gonzales v. Lee Moor Contr. Co., 2 Cal. Ind. Acc. Com'n. 325.

(37) N. K. Fairbank Co. v. Industrial Com'n., 285 III. 11, 120 N. E. 457, 17 N. C. C. A. 948. Similar holding where pieceworker was injured while on the way to factory where she was employed, and carrying bundle of goods on which she had worked at home. Malott v. Healey, 2 Cal. Ind. Acc. Com'n. 127, 12 N. C. C. A. 392.

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An employee, while returning home from his place of work, entered a railroad yard, not a part of his employer's plant nor under its control, and was there killed by a train. His contract of employment did not. provide for transportation to or from work, or for pay for time so consumed. Held, that the accident did not arise out of and in the course of the employment. "If he had chosen to use the public ways, and had been injured by a defect or passing vehicle, the administrator could not recover against the employer, because there would be no causal connection between the conditions of employment and the injuries suffered."39

On the Employer's Premises-The period of employment may cover a period other than that for which wages are paid, and the place of employment may include places on the employer's premises traversed by the employee in going to and from his work and the places used by the employee with the employer's consent.40

Injuries have been held to arise out of and in the course of the employment when received by the employee, while going to the timekeeper's office at the close of the day's work; while being hoisted from a mine after the day's work was finished;42 while

(38) Hills v. Blair, 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409.

(39) Leveroni V. Traveler's Ins. Co., 219 Mass. 488, 107 N. E. 349, 15 N. C. C. A. 245.

(40) Larke v. John Hancock Mut. L. Ins. Co., 90 Conn, 303, 97 Atl. 320, L. R. A. 1916E 584, 12 N. C. C. A. 308; Northwestern I. Co. v. Industrial Com'n., 160 Wis. 633, 152 N. W. 416.

(41) Stephens Engineering Co. v. Industrial Com'n., 290 III. 88, 124 N. E. 869, 5 W. C. L. J. 205.

(42) Moury v. Latham C. & M. Co., 212 Ill. App. 508, 18 N. C. C. A. 1034.

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going to get his lunch, on a flight of stairs, outside the work room, not under the control of the employer, but which afforded the only means of going to and from the work room; while in the lower berth in a bunk-house, in which he was required to sleep, by a straw falling in his mouth from the upper berth and lodging in his throat;** while attempting to use an elevator in going to his work, by falling into the elevator shaft while walking towards the shop exit, after the day's work, although on the way out he was not using a board walk intended to be used by employees going to and from work.46

But where an employee, after quitting time, after washing and putting on his coat and hat, turned back to look about the working room for his companions, and in doing so put his head into an elevator shaft and was killed by the descending elevator, it was held that the accident did not arise out of and in the course of the employment.*

A like ruling was made in the case of a car inspector, who, while going home for his dinner. fell from a trestle about half a mile from the place where he stopped work, but within the employer's railroad yards.48

The article next week will deal with injuries received during temporary cessation. of work.

St. Louis, Mo.

C. P. BERRY.

(43) In re Sundine, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A 318.

(44) Holt Lumber Co. v. Industrial Com'n., Wis., 170 N. W. 366, 3 W. C. L. J. 549.

(45) Starr Piano Co. v. Industrial Acc. Com'n., Cal., 184 Pac. 860, 5 W. C. L. J. 14.

(46) Baltimore Car Fdy. Co. v. Ruzicka, Md., 104 Atl. 167, 2 W. C. L. J. 791, 17 N. C. C. A. 945. (47) Urban v. Topping Bros., 184 App. Div. 633, 172 N. Y. Supp. 432, 3 W. C. L. J. 184.

(48) McInerney v. Buffalo & S. R. Corp., 225 N. Y. 130, 121 N. E. 806, 3 W. C. L. J. 494.

JUDGMENT-PERJURED TESTIMONY.

WILMER v. PLACIDE.

Court of Appeals of Maryland. Nov. 17, 1920.

111 Atl. 822.

Litigation will not he reopened on the ground that a judgment was obtained by perjured testimony.

Was the court right in refusing to permit the deposition to be read in evidence? A good deal of Mr. Bond's evidence was wholly irrelevant, and the only part of it that could, under the plaintiff's claim, be said to be pertinent was that in reference to the deeds for and the mortgage on the Madison avenue property. He testified that he left Baltimore in 1892, and did not come back permanently until 1913, that he only visited Baltimore in that interval three or four times, but there is not the slightest suggestion that he could not have been procured at the hearing by Wilmer, if his evidence was deemed important or desirable. There may be some question about what property is referred to in the other counts, but there can be none as to the fifth and sixth counts, as they refer to No. 1300 Madison avenue. There are few, if any, instances in the reports of decisions of courts where one property has been more in litigation than that. There was every opportunity, as shown by the records and decisions of this court, for this appellant to present every phase of the cases that was permissible, and in some of them some points were pressed which had no foundation in law or equity. Speaking then of the Madison avenue property, this suit is an attempt to continue, or, to speak more accurately, to reopen litigation in a way that has no justification under the decisions of this court, whatever may be the rule in any other jurisdiction.

The fifth count alleges that

The defendant "did by fraud, fraudulent conspiracy and perjury dispossess and deprive the plaintiff of his rights in said property, and in furtherance of said object wrongfully and willfully, corruptly and fraudulently, repudiate her certain deed of said property to her sister, theretofore duly executed, acknowledged, delivered, and recorded, and, in order to perfect said fraud, did willfully on false testimony and otherwise commit, and cause to be committed, perjury in a certain suit and suits pending between the plaintiff and defendant in the several courts of Baltimore city."

The sixth count alleges that the defendant executed a mortgage on said property, which became the property of the plaintiff, "and

that by false testimony, perjury, fraud, and conspiracy, said Susan E. Placide did, by abuse of the process of the courts of Baltimore city, cause the plaintiff to lose his property in said mortgage, and to be otherwise injured and damaged."

In the case of Wilmer v. Placide, 118 Md. 305, 84 Atl. 491, Susan E. Placide filed a bill against Edwin M. Wilmer, alleging that she was the owner of No. 1300 Madison avenue, which was conveyed to her by Edwin M. Wilmer and George W. Lindsay, trustees, by deed dated June 16, 1887; that on the 3d of November, 1890, she gave to her sister, Alice B. Wilmer, who was the wife of Edwin M. Wilmer, a mortgage, which was assigned by her to the Mercantile Trust & Deposit Company, which assigned it to Edwin M. Wilmer on the 28th of December, 1897, and which the bill alleged had been fully paid. The bill also alleged that Wilmer was largely indebted to the plaintiff for money collected by him for her, and for money intrusted to him to be paid upon the mortgage, which he failed to apply thereto, and wrongfully took an assignment of the mortgage to himself; that after the death of Alice B. Wilmer, the plaintiff took charge and control of and cared for her three infant children, and in 1897 she allowed said Wilmer to bring to the Madison avenue home, where he, his children, and the plaintiff then lived, his two sisters and two nieces, and permitted them to occupy the greater part of her house under an agreement that he would pay all expenses, taxes, repairs, and interest on the mortgage, etc.

Wilmer in his answer denied the plaintiff's ownership of the Madison avenue property, and alleged that after the conveyance to the plaintiff by the trustees, she conveyed it away, denied the alleged indebtedness and the agreement as to the occupancy of the house, and that the plaintiff had paid any part of the mortgage, excepting a small amount for which credit was given at the time of the assignment to him. On December 28, 1910, Miss Placide filed a bill against Edwin M. Wilmer, Henry Placide Wilmer and E. Placide Wilmer, sons of Edwin M., and H. V. Morse, husband of a deceased daughter of Edwin M. Wilmer, in which she alleged that Edwin M. had left for record in the clerk's office a deed dated the 28th of July, 1887, by which she was said to have conveyed to her sister, Alice B. Wilmer, the house and lot known as No. 1300 Madison avenue. She denied that she ever signed such a deed, and alleged that she never heard of it until at or about the time it was put on record, which was on December 8, 1910. Alice B. Wilmer died intestate on June

29, 1891, and Edwin M. claimed a life estate in said property as the husband of his deceased wife. A great mass of testimony was taken, and there were numerous exceptions filed by Wilmer to the rulings of the court upon the admission or rejection of testimony.

The two cases were consolidated, and there was a decree passed which set aside the alleged deed, and the papers in the case were referred to the auditor to state an account as therein directed. Both sides appealed to this court. It will be noticed that the mortgage was given over 3 years after the alleged deed was made, which deed was not recorded for more than 23 years after its date-while the first suit referred to above was pending. The two surviving children of Edwin M. Wilmer filed an answer, admitting the allegations of the bill, and said they never heard of the alleged deed and were willing and anxious that it be declared void and of no effect. The testimony showed that Edwin M. Wilmer had drawn the petition to the court and the order thereon for his wife, who was trustee, to loan the money on the mortgage, and that he had drawn a number of papers which showed that the property belonged to Miss Placide.

Miss Placide testified that she had frequently signed papers at Wilmer's instance without understanding what was in them, owing to the confidence she then had in him. She denied that she had gone before the justice of the peace before whom the deed to Mrs. Wilmer purported to have been acknowledged while Mr. Bond in his deposition said he was present when she acknowledged it, but as will be seen in the opinion in 118 Md. 305, 84 Atl. 491, the conclusion reached by the court was "almost exclusively upon the conceded testimony in the case." In Wilmer v. Placide, 127 Md. 339, 96 Atl. 621, there was an attempt to have the decree passed in 118 Md. 305, 84 Atl. 491, vacated and set aside. The grounds relied on were fraud and newly discovered evidence, and the fraud was alleged to consist of perjured evidence. As to the latter, the court said it fell directly under the rule laid down in Maryland Steel Co. v. Marney, 91 Md. 360, 46 Atl. 1077. The authorities there cited by Judge Stockbridge showed too clearly the opinion of this court on the subject to require further citations or discussion of the question. While the case reported in 127 Md. 339, 96 Atl. 621, was an effort to set aside and vacate a decree, the principle involved in this case is the same indeed a court of equity would be more anxious to set aside a decree obtained by perjured testimony than a court of law could be to sustain such a

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