thereafter from questioning commission's jurisdiction, the award being
a nullity. Doey v. Clarence P. Howland Co., Inc., et al.-Appeal of
State Industrial Commission (N. Y.)....
Industrial Commission exercises only administrative and ministerial functions
and has no judicial power. Industrial Commission of Utah v. Evans,
District Judge (Utah)
§ 398. NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPENSA-
The only function of the act, Section 12, relating to the posting of notices
as to the time for notice of injury, and as to effect of failure to post
notices, is to stay the running of the 15 days allowed for notice of injury,
and the only consequences of a failure to post such notices is that the
employees, under Section 11, have 6 months instead of 15 days within
which to give notice. Boyer v. Crescent Paper Box Factory, Inc. (La.)..
Action of minor, by next friend, not barred because written claim for com-
pensation was not served within three months from date of injury; no
guardian having been appointed. Minturn v. Proctor & Gamble Mfg.
Co. (Kan)
Where commission found no written notice was served on master within
period required, but master had actual notice within 10 days and appli-
cant did not intend to mislead master he was not precluded from re-
covery. A. Breslauer Co. v. Industrial Commission of Wisconsin et al.
(Wis.)
Statement by employee to employer's manager in casual conversation that "he
would have to make a claim if he did not get better" is not sufficient
compliance, requiring claim to be made within six months. Baase v.
Banner Coal Co. et al. (Mich.)...
An unequivocal claim for compensation must be made within six months,
even though employer has notice of injury and continues to pay medical
expenses. Brown v. Weston-Mott Co. et al. (Mich.).
Under Employers' Liability Act and Compensation Act, common-law right
of third person to recover for injuries sustained by him as consequence
of harm and injury coming upon another through negligence of de-
fendant is not barred by neglect or refusal of such other to give notices
which are conditions precedent to any right of recovery by him, by a
release, or by refusal to prosecute, since rights of third persons are not
included in terms of act. Erickson v. Buckley (Mass.).
Mere fact that employer has knowledge that employee has received injury will
not dispense with necessity of claimant's making claim for compensation.
Good v. City of Omaha (Neb.).
Payments by employer to injured employee stated to be made under act and
continued about a year, do not estop employer from asserting employee's
delay in filing claim as bar to recovery of compensation, where first
payment was made after time in which to file claim had passed. Degaglio
v. Bradley Contracting Co. (N. Y.)..
Injured employee's delay in filing claim for compensation until nearly two
years six months bars claim unless employer is estopped from asserting
such delay as bar to award. Degaglio v. Bradley Contracting Co. (N. Y.) 828
Since employer is interested in proceeding for compensation, notice should
always be given of filing of claim for compensation. Industrial Com-
mission of Utah v. Evans, District Judge (Utah)..
Demand for compensation not waived and would not be dismissed merely be-
cause urged in the alternative and only if court should hold that plaintiff
was not entitled to damages for tort. Philps v. Guy Drilling Co. (La.). 783
Promise of employer's superintendent to give injured employee easy job as
soon as he was able to work does not estop employer from asserting em-
ployee's delay in filing claim as bar to recovery of award; there being
no fact, falsely asserted, that induced employee not to file claim. Degaglio
v. Bradley Contracting Co. (N. Y.)
Where evidence as to wages and contribution to plaintiff's support were so
uncertain that compensation could not be determined, district court should
have reopened case to allow plaintiff to introduce additional evidence.
Philps v. Guy Drilling Co. (La.)......
Under act proceedings cannot be commenced after six months from date of
injury in any case whatever, where no proceedings were commenced nor
payment of indemnity, or agreement therefor, made for original injury
within six months. Kauffman v. Industrial Accident Commission of Call-
fornia et al. (Cal.)..
Where husband was injured and pending claim for compensation, he died,
and his attorney mailed defendants notice reading, "take notice your
petitioner (the husband) died last night from his injuries." signing it
as attorney for husband, and entitling it as in husband's proceeding.
notice was not claim for compensation by widow-widow could not
maintain proceeding for compensation for death of husband where she
did not claim compensation within six months of death, though he
died pending proceedings by himself for compensation. Curtis v. Slater
Const. Co. (Mich)
Where mining company's pit boss and foreman had knowledge of Injury
suffered by claimant at time disability was ascertained to have resulted,
company had sufficient notice of injury. Vandalia Coal Co. v. Holtz
(Ind.)
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Section 3665 and 3685, construed and held that action may be brought either
by dependent or dependents entitled thereto, legal guardian or trustee of
minor dependent, or by executor or administrator of deceased. Coster
v. Thompson Hotel Co. (Neb.)..
Complaint alleging relation of employer and employee that injury arose out
of and in course of employment, that employer had rejected the act and
Injuries sustained, presented prima facie case. Balen v. Colfax Consol.
Coal Co. (Iowa)
Where supplemental petition in suit for compensation complied with act, plea
of prescription because original petition set forth no cause of action and
supplemental petition was not filed within year after accident. was with-
out merit. Philps v. Guy Drilling Co. (La.)..
PRESUMPTIONS AND BURDEN OF PROOF.
As hernia is a disease arising out of natural causes as well as from accident,
it was incumbent on claimant to offer some evidence that employment
caused or could have caused injury. Alpert v. J. C. & W. E. Powers et al.
(N. Y.)
Burden of proof that injury was offered in course of employment is on
claimant. John A. Roebling's Sons. Co. et al. v. Industrial Accident
Commission et al. (Cal)...
Burden of proof rests upon master to show that he was misled and
prejudiced by failure to give notice. A. Breslauer Co. v. Industrial Com-
mission of Wisconsin et al. (Wis.).
Negligence is an affirmative fact which plaintiff must establish. New Orleans
& N. E. R. Co. et al. v. Harris (U. S.). . .
Servant must show when accident happened and that injury arose out of
employment. David Bradley Mfg. Works v. Industrial Board of Illinois
et al. (Ill.)..
Burden rests on dependent to prove by preponderance that injury arose out
of employment. Murphy's Case. In re Employers' Lability Assur.
Burden is on claimant to show injury arose out of employment. Hallett's
Case. (Mass).
Wife who was living with husband, since deceased, when he was injured, is
conclusively presumed to have been wholly dependent. Bott's Case. In
re Employers' Liability Assur. Corp., Ltd. (Mass.).
In order to defeat award for willful misconduct master must affirmatively
establish defense that decedent should have used different safety ap-
pliance than one he did. Haskell & Barker Car Co. v. Kay (Ind.)
On facts stated, section 15 does not create presumption that he has lost use
of foot; section 21 of the act relating to presumptions not applying, and
burden of establishing loss being on claimant. Mountain Ice Co. v. Court
of Common Pleas in and for Morris County et al. (N. J.)..
Employing railroad being engaged in both interstate and intrastate com-
merce to relieve itself of obligation to pay compensation under act had
burden of showing that at time of injury servant was actually engaged
in interstate commerce. Illinois Cent. R. Co. v. Industrial Board et
al (Ill.)
Where servant touched wire carrying 114 volts and died almost immediately,
presumption was that accident was cause of death until overcome by
contrary evidence, notwithstanding current would not ordinarily cause
death. Phil Hollenbach Co. v. Hollenbach (Ky.)..
Burden of proof is on claimant to show that injury arose out of employment.
Robinson v. State (Conn.).
Burden is on employer to show that servant claiming compensation was
guilty of willful misconduct. Rosedale Cemetary Ass'n v. Industrial Ac-
cident Commission of California et al. (Cal.)...
Widow living with husband at time of death is conclusively presumed to
have been wholly dependent upon him for suppert-son of deceased
servant, child by his former wife, and under age of 18, though not living
with father at latter's death is conclusively presumed to have been
wholly dependent for support on deceased servant. Holmberg's Case
(Mass.)
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Evidence of subsequent condition of elevator or subsequent orders of elevator
inspector respecting it, or of repairs thereafter made upon it, incom-
petent, except in 80 far as to show condition at time of accident.
Beckles' Case. Flint v. Employers' Liability Assur. Corp. TMass.).
Verdict of coroner's jury that insured died from septicemia due to accident
arising out of employment, not admissible to determine cause, though
prima facie showed cause of death. Peoria Cordage Co. v. Industrial
Board of Illinois et al. (Ill.)..
Testimony of medical expert as to probable cause of employee's death was
admissible. Walsh v. River Spinning Co. (R. I.).
Testimony of employer's manager as to nature and scope of employment and
to conversations about business was admissible-in proceeding for death
of soliciting brewery salesman, it was competent on issue of scope of
employment for prospective customer to testify relative to negotiations
for purchase of beer and agreement to meet deceased at hotel to con-
clude negotiations when deceased was killed on his way to hotel.
McMinn v. C. Kern Brewing Co. et al. (Mich.).
Under statute both causes of action must be set up in pleadings if recovery
be sought in each, and if plaintiff proceeds to trial on complaint for
pecuniary damages resulting from death alone and refuses, when given
opportunity to amend complaint, error to permit evidence, over objection,
in support of injury not covered by complaint. Lennon v. Erie R. Co.
(N. J.)
Where it was agreed that commission's physician examine servant and report
whether disability was due to injury or disease, his report founded in
part on reports of assistants held competent evidence under agreement.
Mesmer & Rice et al. v. Industrial Accident Commission et al. (Cal.).. 743
Compensation Act contemplates liberality in admission of proof and in-
ferences reasonably to be drawn therefrom. McCauley V. Imperial
Woolen Co. et al. (Pa)
What deceased said as to cause of mark upon his neck was hearsay, which,
standing alone. was insufficient to sustain referee's findings for claimant.
McCauley v. Imperial Woolen Co. et al. (Pa.)..
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Evidence held not to show that servant's arsenical poisoning was disease
incident to occupation. Matthiessen & Hegeler Zinc Co. V. Industrial
Board et al. (III.)
Evidence justified finding of board that employer's agents had knowledge
of injury and that reasonable excuse for failure to give notice was shown.
Vandalia Coal Co. v. Holtz (Ind.).
(1). In general,
Defense relied upon was that plaintiff's injuries were result of his negligence
in failing to procure proper medical attention, held there was no substan-
tial evidence for basis of this claim and instructions upon this issue
were not prejudicial to defendant. Dobish v. Cudahy Packing Co. (Kan.).
Evidence warranted finding that fellow servant assisting plaintiff was negli-
gent, and that plaintiff who fell was not guilty of contributory negligence.
Pellerin V. International Cotton Mills International Cotton Mills V.
Pellerin (U. S.).....
In action for death of engineer while leaving work and crossing tracks,
evidence held not to leave cause of action conjectural. Ewig v. Chicago,
M. & St. P. Ry. Co. (Wis.).
Second injury occurring while exercising injured leg under direction of sur-
geon, arose from condition produced by first injury-the act does not
require demonstration as to cause of death, but only that degree of proof
which produces conviction in an unprejudiced mind. Shell Co. of Cali-
fornia v. Industrial Accident Commission et al. (Cal.).
Under federal Act holding that judge in trying of suits is not bound by
usual common-law or statutory rules of evidence, it is incumbent upon
claimant to prove fact necessary to sustain that accident occurred while
employee was performing services in course of employment. Piske v.
Brooklyn Cooperage Co. (La.)..
Facts required to establish dependent's claim to compensation need not neces-
sarily be proved by direct evidence, but may be established by reasonable
inferences. Murphy's Case. In re Employers' Liability Assur. Corp.
(Mass)
Evidence established servant's failure to use safety appliance appropriate
to his work and his use of inferior one was due to his negligence rather
than willful failure. Haskell & Barker Car Co. v. Kay (Ind.).
Board was at liberty to refuse to give credence to any part of evidence
which, in their opinion, was not entitled to credence. Schlehuber v.
American Express Co. (Mass)..
518
Neither referee nor Compensation Board has right to find material facts on
hearsay alone. McCauley v. Imperial Woolen Co. et al. (Pa.)..
(2). Relation of parties.
Evidence sustained finding that claimant injured while aiding in installing
new engine in paper mill, was an employee, and not an independent con-
tractor, though employment was casual. McNally v. Diamond Mills
Paper Co. et al. (N. Y.).
Where it appeared that person injured was engaged in underdressing a stone
according to marks made thereon by superintendent, such fact did not
show he was an employee, instead of subcontractor; contract providing
that work of such character was to be paid for at certain rate per hour,
not as wages, but as pay for work covered by its terms. Mobley v. J. S.
Rogers Co. (Ind.)
Jurisdictional fact of contract of employment must be shown by evidence
which would be required to establish any other contractual relation.
Tsangournos et al. v. Smith et al. (N. Y.)...
Evidence sufficient to support finding that one skilled in blasting was em-
ployee of cemetery association and not an independent contractor. Rose-
dale Cemetery Ass'n v. Industrial Acc. Commission of Cal. (Cal.)...
(3). Acceptance or rejection of statute.
Evidence supported findings of jury to effect that plaintiff had not received
actual notice of defendant's acceptance of provisions of act. Farmers'
Petroleum Co. et al. v. Shelton (Tex.)...
(4). Injury arising out of and in course of employment.
Finding that injuries were accidental and arose out of employment, held
without facts or evidence to support it. Alpert v. J. C. & W. E. Powers
et al. (N. Y.)...
Ultimate finding that injury arose out of employment within meaning of the
act is sustained-employee was hit and injured by missile thrown by
fellow worker. State ex rel. H. S. Johnson Sash & Door Co. v. District
Court, Hennepin County. et al. (Minn.)....
Report of matter to commission of injury to servant and admission that
servant was injured, while proof of accident, is not proof that injuries
claimed, resulted from accident. A. Breslauer Co. v. Industrial Com-
mission of Wisconsin et al. (Wis.).
Testimony that lodging house keeper was in habit of employing some one
off and on to help out chambermaid, warranted conclusion that employ-
ment was in usual course of employer. Walker v. Industrial Accident
Commission (Cal.)
Where various theoretical conclusions may be drawn, each equally plausible,
some indicating that injury arose out of employment and others that
misconduct was producing cause, it may not be said that evidence is
sufficient to sustain cause of claimant upon whom burden of proof rests-
evidence insufficient to support conclusion of commission that decedent
was killed in course of employment, tending instead to show that it
was misconduct. John A. Roebling's Sons Co. et al. v. Industrial Ac-
cident Commission et al. (Cal.).
Coal miner while loading car died from rupture of aorta which was in diseased
condition, evidence sustained finding injury occurred in course of employ-
ment. Indian Creek Coal & Mining Co. v. Calvert et al. (Ind.)..
Employee of cocperage company who temporarily went out of building and
was killed on employer's switch track, evidence held to show accident
did not arise out of employment. Piske v. Brooklyn Cooperage Co. (La.) 264
Evidence justified finding that cause of death was doubtful and could not be
determined, not requiring finding that death was result of personal in-
jury due to inhalation of poisonous fumes. Murphy's Case. In re Em-
polyers' Liability Assur Corp. (Mass.).
Under Federal Act assumption of risk as defense is removed only in cases
where violation by common carrier of statute enacted for safety of em-
ployees contributed to injury. Vandalia R Co. v. Kendall (Ind.)..
Not necessary that some witness should testify to seeing accident, if it is
shown that while employee is at work there has been an accident or
some circumstances tending to show fact. Peoria Cordage Co. v. Indus-
trial Board of Illinois et al. (III.)...
In proceeding for death due to heat prostration, evidence held sufficient to
justify inference drawn therefrom by commission that employee had
not been specially affected by severity of heat by reason of employment.
Campbell v. Clausen-Flanagan Brewery et al.-In re Brewers' Mut. In-
demnity Ins Co. (N. Y.)..
Evidence supported finding that deceased servant at time of accident was in
course of employment. McMinn v. C. Kern Brewing Co. et al. (Mich.).. 645
Finding that injured employee, highway foreman. was crossing road at time
of accident to engage in conversation with friend, warranted by evidence.
Robinson v. State (Conn.)
What deceased said as to cause of mark upon his neck was hearsay, which,
standing alone. was insufficient to sustain referee's findings for claimant.
McCauley v. Imperial Woolen Co. et al. (Pa.)....
Probable nature of accident followed by death may be established by cir-
cumstantial evidence. McCauley v. Imperial Woolen Co. et al. (Pa.).. 930
Facts conceded or found by commissioner showed father assisted in support
of son, alleged not to be in best of health, did not justify conclusion of
commissioner-who erroneously ignored evidence that claimant was un-
duly pampered by father and possibly somewhat lacking in enterprise-
that claimant was partial dependent. Gherardi v. Connecticut Co. (Conn.) 212
Evidence sufficient to support verdict rendered by jury upon proof of claim
predicated upon dependency must be regarded as also sufficient to sup-
port claim for compensation out of workmen's compensation fund based
upon same ground. Poccardi, Royal Consul, v. Ott, Compensation Com'r
(W. Va.)
Conduct of employer in permitting elevator to be maintained and operated
in condition in which it was at time of acciden was not serious and
Award for permanent loss of foot erroneous under evidence, where leg
was merely factured. Mountain Ice Co. v. Court of Common Pleas in
and for Morris County et al. (N. J)..
Evidence sustained finding that employee was entitled to nearly one-half of
total disability of both eyes and to sustain finding for permanent instead
of temporary injury to sight. International Motor Co. v. Purcell (N. J.) 528
willful misconduct, permitting of double compensation-"serious and will-
ful misconduct" defined Beckles' Case. Flint v. Employers' Liability
Assur. Corp. (Mass.).
Whether plaintiff was injured by mortar thrown by fellow servant in sport
and whether fellow servant habitually indulged in dangerous play, and,
if so, whether such habit was known to defendant, were questions for
jury. Stuart v, Kansas City (Kan.)...
Evidence presented jury question whether at time of accident employee was
leaving work in usual and ordinary way. Ewig v. Chicago, M. & St. P.
Ry. Co. (Wis.)
Evidence presented question whether engineer in failing to keep proper
lookout on one side of engine in yards was guilty of negligence render-
ing company liable. Ewig v. Chicago, M. & St. P. Ry. Co. (Wis.)...... 193
Evidence warranted finding of contributory negligence of locomotive engineer
killed while crossing tracks of employer. Ewig v. Chicago, M. & St. P.
Ry. Co. (Wis.)......
Defense relied upon was that plaintiff's injuries were result of his negligence
in failing to procure proper medical attention, held there was no substan-
tial evidence for basis of this claim and instructions upon this issue
were not prejudicial to defendant. Dobish v. Cudahy Packing Co. (Kan.).
Findings of court awarding compensation interpreted and found not to be
inconsistent with judgment rendered. Gilmore v. Monarch Cement Co.
(Kan.)
Petition did not state facts sufficient to compel trial court to grant new trial.
Lombard v. Uhrich et al. (Kan )....
APPEAL OR OTHER PROCEEDINGS FOR REVIEW.
Hearsay evidence admissible-declaration that crutch slipped and that work-
man fell injuring him second time, which second injury was direct out-
come of first and resulted in death, admissible. Shell Co. of California
v. Industrial Accident Commission et al. (Cal.).
PROCEEDINGS BEFORE BOARDS OR COMMISSIONS.
Evidence must not be taken ex parte. Ruda v. Industrial Board of Illinois
et al. (III.).
Compensation Act permits liberal investigation by hearing and otherwise
and after all data have been gathered, without regard to technical
rules, proof must be examined and irrelevant testimony excluded, and
findings must rest on relevant and competent evidence. McCauley v.
Imperial Woolen Co. et al. (Pa.).....
REPORT AND FINDINGS OR AWARD.
Court on appeal from original award had jurisdiction, since amendment did
not vitiate original. Foster-Latimer Lumber Co. v. Industrial Commis-
sion of Wisconsin et al. (Wis.)...
Express finding that representation by insured was immaterial was not re-
quired where such issue was not presented by insurer and commission
found policy was in full force and effect at time of injury. Employers'
Liability Assur. Corp., Ltd., of London, Eng., v. Industrial Accident Com-
mission (Cal.)
Finding that employer was grossly negligent was not finding that he was
guilty of serious and willful misconduct, permitting recovery of double
compensation. Beckles' Case. Flint v. Employers' Liability Assur. Corp.
(Mass.)
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