Miller v. Washington Co.

made in term time or at chambers, shall transfer the cause to the circuit court of the county in which it shall be pending for trial before the court and a jury. The act, however, expressly provides that it shall have no application to ejectment suits, or suits in the nature of ejectment to recover land

We are of the opinion that the chancellor was correct in holding that the suit at bar was not one of which the chancery court acquired jurisdiction by virtue of the act of 1877, but was a suit of which said court had inherent equitable jurisdiction. This is true because it sought to reach the trust fund in the hands of the road commissioners of Washington county, and the chancery court only had power to impound and apply such fund, or a sufficiency thereof, to the satisfaction of complainants' claim. We do not think it will be disputed that the circuit court has no jurisdiction of cases involving in any manner the administration of a trust fund, but that jurisdiction belongs alone to the chancery court, as before stated. We think, therefore, that the granting of a trial by jury was a matter within the discretion of the chancellor.

The remaining assignments of error urged by the defendants, as well as the assignment of error filed by the complainants, go to the amount of the fee allowed by the chancellor. It is insisted by the defendants that the sum of $4,500 allowed the complainants as the reasonable value of their services is unreasonable and excessive. It is their insistence that the question of fixing the compensation which the complainants should have for their services

Miller v. Washington Co.

was, by agreement, left to the discretion of the commissioners, and that the commissioners met and determined, after due consideration of the matter, that the sum of $1,500 would be reasonable, and that this amount only should have been allowed complainants by the chancellor.

Upon the other hand, it is insisted by the complainants that the fee of $4,500 is grossly inadequate for the services rendered by them, and that they are entitled to a much larger sum.

We are of the opinion that the chancellor reached the justice of the matter when he allowed the complainants the sum of $4,500. We do not think that the defendants' contention that the fixing of the amount of the compensation which the complainants should have for their services was left, by agreement, to the discretion of the commissioners, is sustained by a preponderance of the evidence. If, however, we are wrong in this view of the evidence, and it was agreed that the commissioners should fix their compensation upon the termination of the litigation, still we think the sum fixed should be reasonable and fairly commensurate with the services rendered. We do not think that the sum of $1,500 was reasonable. Nor do we think that the complainants are entitled to a greater sum than the $4,500 allowed by the chancellor. While the suit was an important one, it only involved the constitutionality of the statute under which the bonds for $750,000 were to be issued. It cannot be assimilated to a suit having for its purpose the recovery of that amount,

Miller v. Washington Co.

and, unless recovered, the defendants would have sustained a heavy financial loss.

Without further elaboration, we are content to affirm the decree of the chancellor.

The Washington County Good Roads Commission, as such, will be taxed with the costs of the cause, which costs will be paid out of any portion of the five percent. of the bond issue that may be in their hands, and which the act provides may be used in defraying expenses incident to carrying out the purposes of the act.

Johnson Coffee Co. v. McDonald.

JOHNSON COFFEE Co. v. PEARL MCDONALD et al.

1. MASTER AND SERVANT. Injury while returning with lunch to employer's premises held to "arise out of and in course of employment'' within Compensation Law.

Where an employer permitted his employees to eat their lunch upon the premises, the death of an employee which occurred while she was returning to her place of work in an elevator operated by her employee, after having procured her luncheon outside, for the purpose of eating it within the place of work, arose out of and in the course of her employment within Workmen's Compensation Law, section 2. (Post, pp. 510-512.)

Acts cited and construed: Acts 1919, ch. 123.

Cases cited and approved: Terlecki v. Strauss, 85 N. J. Law, 454; Rayner v. Furniture Co., 180 Mich., 168; Clem v. Chalmers Motor Co., 178 Mich., 340; In re Sundine, 218 Mass., 1; Armstrong v. Redford, (1920) A. C. 757.

2. MASTER AND SERVANT.

Dependency within Compensation

Law determined as of time of accident.

Dependency entitling parties to compensation under the Workmen's Compensation Law is to be determined as of the time of the accident, unaffected by subsequent conditions. (Post, pp. 512-514 Cases cited and approved: Newton v. Rhode Island Co. (R. I.), 105 Atl., 363; Birmingham v. Westinghouse Electric Co., 180 App. Div., 48; In re Yeople, 182 App. Div., 438; Miller v. Riverside Storage Co,, 189 Mich., 360.

Cases cited and distinguished: Pryce v. Navigation Co., (1902) 1 K. B., 221; Bott's Case, 230 Mass., 152; State ex rel. Radisson Hotel v. District Court, 143 Minn., 144.

Johnson Coffee Co. v. McDonald.

3. MASTER AND SERVANT. Compensation Law given broad construction.

The Workmen's Compensation Law should be given a broad construction to accomplish its purpose to provide for dependents of the employee. (Post, p. 514.)

4. MASTER AND SERVANT. Children whose father is living may be allowed compensation as being dependent upon mother. Workmen's Compensation Law, section 30, subsections 9-13, dealing with the question of compensation to be paid in death cases. recognize that dependency as a matter of fact may exist on the part of a husband or children upon the wife and mother, so that the court may find the children actually dependent upon the mother, though their divorced father was still living and had not been relieved of his obligation to support them, and had secured employment as a means of supporting them after the mother's death. (Post, pp. 514-516.)

5. MASTER AND SERVANT. Conclusive presumption of dependency on father does not exclude proof of actual dependency on mother. The provision of Workmen's Compensation Law, section 30, creating a conclusive presumption that children under sixteen are wholly dependent on the father, means that compensation shall be paid to such children for the death of the father, whether they are as a matter of fact dependent upon him or not, but does not exclude proof in proceedings to recover compensation for the death of the mother that the children were in fact dependent upon her earnings, though the father was still living. (Post, pp. 514-516.) Acts cited and construed: Acts 1919, ch. 123, sec. 30, subsecs. 9-13. Cases cited and approved: In re Carroll, 65 Ind. App.. 146; Parson v. Murphy, 101 Neb., 542; Sweet v. Sherwood. 40 R. I., 203; Purdy v. Watts, 91 Conn., 214.

FROM HAMILTON.