tuted by a person dependent on a workman whose death results from an injury, as it does in case of an injured workman.76 Under the New Jersey act, it is necessary for the trial judge, before awarding a lump sum, to determine what sum should be paid periodically; and he should also state the method by which he reached his result, and the reasons that induced him to commute the periodical payments into a lump sum." 77 Where the fact that compensation was owed by the employer to the dependents of the deceased employee, and the amount of compensation, were conceded, it is not necessary to institute proceedings for arbitration before commencing a proceeding for the commutation of the compensation to a lump sum under § 5 of the act." 78 The amount of the lump sum to be paid agreement or arbitration may ask for and obtain judgment against the employer for 80 per cent of the sum of the payments due and to become due in cases where there is doubt as to the security of compensation, these provisions have no application in an action for compensation, where the court, in the exercise of its discretion, enters judgment for a lump sum in the first instance. Roberts v. Charles Wolff Packing Co. (1915) 95 Kan. 723, 149 Pac. 413 (headnote by the court). 76 McCracken v. Missouri Valley Bridge & Iron Co. (1915) - Kan. —, 150 Pac. 832. The Supreme Court held that the trial court did not abuse its discretion in granting the compensation to the mother of a deceased workman in a lump sum, where she was entirely dependent upon her son's earnings for her own continued existence, was utterly destitute, with no income of her own, and was physically unable to earn her own living, being sixty-two years old. 77 Mockett v. Ashton (1913) 84 N. J. L. 452, 90 Atl. 127. The determination of the trial judge required by paragraph 20 of the New Jersey act should set forth in cases where weekly payments are commuted to a lump sum, the basis of award in amount for a week and number of weeks; the commuted amount being expressly predicated on such finding. Long v. Bergen County Ct. of Common Pleas (1913) 84 N. J. L. 117, 86 Atl. 529. A direction of the common pleas that the weekly payments be commuted to a lump sum pursuant to 21 of the act should be based on specific findings of fact, supported by legal evidence. New York Shipbuilding Co. v. Buchanan (1913) 84 N. J. L. 543, 87 Atl. 86. 78 The proceedings for bringing parties into court, under § 5 of the act, relating to the commutation of compensation to a lump sum, are regulated by the act itself, and resort need not be had to the general in commutation of the weekly payments is the present value of such payments.79 The amount to be awarded under § 2 of the New Jersey act to the employee is not to vary according to his age or the character of his work or his expectation of life; the only variance between the cases of different employees is that caused by difference in wages earned.80 Where the statute fixes the number of weeks that the payment for various specified injuries shall continue, it is, of course, error to award compensation for a longer time.81 The number of weeks specified in the statute is not to be reduced by the first two weeks after the accident, during which no compensation is to be paid.82 Where the employee suffers a loss other than those losses for which provision is specifically made, the amount payable as compensation is to bear the same relation to the amount practice act. Staley v. Illinois C. R. Co. (1914) 186 Ill. App. 593. 79 The lump sum to which the compensation is to be commuted under § 5 of the Illinois act of 1911 is the present value of the full sum of compensation which was to be paid in instalments. (Ill.) Ibid. In commuting the periodical payments to a lump sum, the trial judge should make the lump sum equal to the present value of the periodical payments; and it is error to multiply the weekly payment by the number of weeks, and make the necessary credits. James A. Banister Co. v. Kriger (1913) 84 N. J. L. 30, 85 Atl. 1027, rehearing denied in — N. J. L., 89 Atl. 923. In awarding a lump sum, it is error not to make allowance for the difference in value between the lump sum to be presently paid and the value of the weekly payments to be made thereafter. Baur v. Court of Common Pleas (1915) N. J. L., 95 Atl. 627. - 80 Bateman Mfg. Co. v. Smith (1913) 85 N. J. L. 409, 89 Atl. 979, 4 N. C. C. A. 588. 81 An award of compensation for a total of 450 weeks is erroneous, since the statute provides that in no case shall the total number of weekly payments be more than 400, and this error is not rendered harmless by the reservation of right to a modification in case of an earlier termination of a temporary disability. Birmingham v. Lehigh & W. Coal Co. (1915) N. J. L. 95 Atl. 242. 82 The provisions in ¶ 13, that no compensation shall be allowed for the first two weeks after the injury, except for medical and hospital services, does not have the effect of reducing from thirty-five weeks to thirty-three weeks the period for which compensation is to be paid to an employee who had lost the first finger, or a phalange thereof. James A. Banister Co. v. Kriger (N. J.) supra. stated in the schedule as the disabilities bear to those produced by the injuries named in the schedule, but the payment period is for the full time stated in the schedule.83 An injured workman is entitled to the minimum compensation of $5 a week provided for in the New Jersey statute, regardless of the character of the injury.84 83 Where an employee suffers an injury to an arm, resulting in the loss of thirty per cent of the use thereof, he is entitled to 30 per cent of the compensation he would have been entitled to for the total loss of the arm for the whole period of 200 weeks provided for in the statute; and if the amount per week does not amount to $5, then the minimum provision of the statute applies, and he is entitled to such minimum amount of $5. De Zeng Standard Co. v. Pressey (1914) 86 N. J. L. 469, 92 Atl. 278. The court said that it was erroneous to award him full compensation for thirty per cent of the time, but, as the employee did not complain, the master could not. An award for a partial injury to the motion of an arm of the same compensation as the statute fixes for the loss of the arm is not in compliance with the statutory mandate that the compensation shall bear such relation to the amount stated in the schedule as the disabilities bear to those produced by the injuries named in the schedule. Barbour Flax Spinning Co. v. Hagerty (1913) 85 N. J. L. 407, 89 Atl. 919, 4 N. C. C. A. 586. Where the statutory allowance is of 400 weeks' pay for total disability, an allowance for 340 weeks' pay for injuries consisting of a fracture of the skull, paralysis of the right side of the mouth, and injuries to the nostrils, eye, and ear, together with the impairment of the use of the right arm, is improper where it appeared that the injuries did not approach total disability. O'Connell v. Simms Magneto Co. (1913) 85 N. J. L. 64, 89 Atl. 922, 4 N. C. C. A. 590. An award of 75 per cent on what the statute fixes for an arm in the case where a workman's forearm and hand were injured to the extent of 75 per cent, and his upper arm to the extent of 8 per cent, is not necessarily incongruous with the statutory provision making amputation be tween the elbow and the wrist equivalent to the loss of a hand only. Blackford v. Green (1915) N. J. L. 94 Atl. 401. The court said that it is conceivable that a maimed forearm may impair the efficiency of the whole more than the amputation between the wrist and the elbow. A workman who has lost 80 per cent of the usefulness of both of his eyes is entitled under clause b of the New Jersey act to 80 per cent of the compensation for the total loss of both eyes, which amounts to compensation for 320 weeks. Vishney v. An award of compensation may be made to take effect as of the date antecedent to the date of application.85 An employer is entitled, upon an award of compensation being made against him, to credit for any payments which he may have made to the workman in the way of compensation; 86 he is also entitled to credit for any amount which he has paid out an account of medical or hos| Empire Steel & I. Co. (1915) N. J. L. 95 Atl. 143. 84 The minimum compensation of $5 per week, provided for in 11, clause a, of the New Jersey Laws 1911, chapter 95, applies in the case of an employee who had lost the phalange of a finger, although clause c provides that the loss of the first phalange of any finger shall be considered to be equal to the loss of one half of the finger, and the compensation shall be one half of the amount justified for a finger, and $5 is all that would be awarded had the employee lost his entire finger. James A. Banister Co. v. Kriger (1913) 84 N. J. L. 30, 85 Atl. 1027, rehearing denied in 89 Atl. 1027. N. J. L., An award of the minimum compensation of $5 a week for a period of 30 weeks is servant suffers a total proper where a temporary injury to a finger which would entitle him to an award of $7.50 a week, or 50 per cent of his wages for a period of six weeks, and also suffers a permanent injury to the middle finger equal to the loss of one half of the phalange of that finger, for which the proper award would be one half of one fourth of his wages. Maziarski v. George A. Ohl & Co. (1914) 86 N. J. L. 692, 93 Atl. 110, following James A. Banister Co. v. Kriger (1913) N. J. L. 89 Atl. 923. In Barbour Flax Spinning Co. v. Hagerty (1913) 85 N. J. L. 407, 89 Atl. 919, 4 N. C. C. A. 586, where there was an award for of the same compensation as the statute a partial injury to the motion of the arm fixed for the loss of an arm, the court said: "The petitioner seeks to justify this allowance on the authority of James A. Banister Co. v. Kriger (1913) 84 N. J. L. 30, 85 Atl. 1027. That case, however, arose under a different provision of the act; the number of weeks for which the allowance was to be made was fixed by the statute. It was only the amount that was subject to variation, and variation was prevented by the clause fixing a minimum of $5 per week. The legislature seems to have thought our construction too liberal to the employee, for it amended the act in 1913, immediately after our decision. Pamph. L. pp. 302, 304." 85 Hunnewell's Case (1915) 220 Mass. 351, 107 N. E. 934. 86 In Barbour Flax Spinning Co. v. Hagerty (1914) 85 N. J. L. 407, 89 Atl. 919, 4 N. C. C. A. 586, where the case shows that the amount allowed by the statute was paid during fifty-two weeks, and that no pital bills for the injured employee.87 | ceding three months of operation" prior But payments made in excess of the to the taking effect of the law, and waitamount of compensation due the work- ing before attempting to collect until man will not be credited against future the employer's contracts were completed, compensation.88 So, under the New Jer- and then calculating the percentages sey statute, the period of time during upon the actual pay rolls during the which a master re-employed the servant period for which the contractors were after an injury, at the same wages as be- liable.92 fore the accident, is not to be deducted from an award for total disability.89 XL. Insurance funds. Under the statutes providing compensation by means of an industrial insurance fund, the questions sometimes arise as to the manner in which the fund shall be collected and handled. Under 17 of the Washington act, with reference to the application of the act where the state, county, or municipal corporation shall engage in any extrahazardous work, the city is authorized to withhold from a contractor the amount which he is obligated to pay into the accident fund.90 But claims for premiums or contributions to the state insurance fund are not entitled to priority over a debt secured by a mortgage to a private person.91 The right of the state to collect premiums for the insurance fund from employers under contract with municipalities is not waived by a failure to make a preliminary collection upon the pay roll of the employer "of the last precredit was given by the trial court for this payment, and the petition averred that it was received from the insurance company of the defendant, and the admission was made at the trial that it was paid by the defendant, the court said: "If that is true, or if the premium for the insurance had been paid by the defendant, credit should have been given. If, however, the payment was by virtue of insurance paid for by the petitioner, the defendant is entitled to no credit therefor." 87 Cain v. National Zine Co. (1915) Kan., 148 Pac. 251. - 88 An employer who pays to an injured employee for a number of weeks after the injury a weekly sum in excess of the compensation legally payable is, upon a proceeding for the recovery of compensation, to be credited with the payment of the legal compensation for the number of weeks in which the payment had been made, less two, since the trial judge was justified in finding that the payments made during the first two weeks, when there was no liability to make compensation, were not made on account of the statutory compensation, and the presumption was that the excess was paid to the workman for labor Work done on the construction of a tunnel should be classified as tunnel construction work, although the tunnel is for a railroad and the schedule provides for a classification of "steam railroad construction work," for which a different rate of premium is required.93 The industrial insurance fund of Nevada, although required by the compensation law (Laws of 1913, chap. 111) to be paid to the state treasurer, is not a part of the "state treasury," so as to require claims against the fund to be presented to the board of examiners to be passed on by the board, and the issuance of warrants by the comptroller.94 Premiums on an insurance policy issued in accordance with the workmen's compensation law (Laws 1910, chap. 674) may be recovered although the law was subsequently declared unconstitutional, where the decision was handed down after the expiration of the term of the policy.95 An employer who carries his own insurance obtains no immunity from liability which would ascertain to a stock corporation or mutual association, had performed, or in a spirit of benevolence. 89 De Zeng Standard Co. v. Pressey (1914) 86 N. J. L. 469, 92 Atl. 278. 90 State ex rel. Pratt v. Seattle (1913) 73 Wash. 396, 132 Pac. 45. The court said it was true that the method by which the collection was to be made was not prescribed by the statute, but that the city was authorized to collect it by withholding it from the amount due to the contractors. 91 Mississippi Valley Trust Co. v. OregonWashington Timber Co. (1914) 213 Fed. 988. 92 State ex rel. Pratt v. Seattle (Wash.) supra. The court said that while possibly the more regular way would have been to make the preliminary collection, nevertheless the method pursued by the state could work no hardship upon the employers, and they therefore could not complain. 93 State v. Chicago, M. & P. S. R. Co. (1914) 80 Wash. 435, 141 Pac. 897. 94 State ex rel. Beebe v. McMillan (1913) 36 Nev. 383, 136 Pac. 108. 95 New Amsterdam Casualty Co. v. Olcott (1915) 165 App. Div. 603, 150 N. Y. Supp. 772. it instead of the employer been the carrier of the insurance.96 XLI. Appeal and review. Findings of fact by the Commission 96 Kenny v. Union R. Co. (1915) 166 App. Div. 497, 152 N. Y. Supp. 117, 8 N. C. C. A. 986. 97 Diaz's Case (1914) 217 Mass. 36, 104 N. E. 384, 5 N. C. C. A. 609; Donovan's Case (1914) 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778, 4 N. C. C. A. 549; Bentley's Case (1914) 217 Mass. 79, 104 N. E. 432, 4 N. C. C. A. 559; Herrick's Case (1914) 217 Mass. 111, 104 N. E. 432, 4 N. C. C. A. 554; | Janes's Case (1914) 217 Mass. 192, 104 N. E. 556, 4 N. C. C. A. 552; Johnson's Case (1914) 217 Mass. 388, 104 N. E. 735, 4 N. C. C. A. 843; Plass v. Central New England, R. Co. (1915) App. Div. 155 N. Y. Supp. 854; Powley v. Vivian & Co. (1915) 169 App. Div. 170, 154 N. Y. Supp. 426. Under its supervisory power over the Public Service Commission respecting its administration of the workmen's compensation act, the West Virginia supreme court takes cognizance of the questions of law only. Poccardi V. Public Service Commission (1915) W. Va. -, post, 299, 84 S. E. 242, 8 N. C. C. A. 1065. 98 Burns's Case (1914) 218 Mass. 8, 105 N. E. 601, 5 N. C. C. A. 635; Nickerson's Case (1914) 218 Mass. 158, 105 N. E. 604, 5 N. C. C. A. 645; Buckley's Case (1914) 218 Mass. 354, 105 N. E. 979, 5 N. C. C. A. 613; Meley's Case (1914) 219 Mass. 136, 106 N. E. 559; Septimo's Case (1914) 219 Mass. 430, 107 N. E. 63, 7 N. C. C. A. 906; Rayner v. Sligh Furniture Co. (1914) 180 Mich. 168, ante, 22, 146 N. W. 665, 4 N. C. C. A. 851; Hills v. Blair (1914) 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409; Spooner v. Detroit Saturday Night Co. (1915) Mich. ante, 17, 153 N. W. 657; Redfield v. Michigan Workmen's Compensation Mut. Ins. Co. (1915) 183 Mich. 633, 150 N. W. 362, 8 N. C. C. A. 889; Goldstein v. Center Iron Works (1915) 167 App. Div. 526, 153 N. Y. Supp. 224; Hoenig v. Industrial Commission (1915) 159 Wis. 646, post, 339, 150 N. W. 996, 8 N. C. C. A. 192; International Harvester Co. v. Industrial Commission (914) 157 Wis. 167, 147 N. W. 53, 5 N. C. C. A. 822; Eagle Chemical Co. v. Nowak (1915) Wis. 154 N. W. 636; First Nat. Bank v. Industrial Commission (1915) Wis. 154 N. W. 847; Fairchild v. Pennsylvania R. Co. (1915) App. Div. - 155 N. Y. Supp. 751. When a judgment of the court of common or trial court are conclusive,97 and will not be disturbed by the appellate court if there is any evidence to support them,98 although the court in trying the facts might have reached a different con| pleas awarding compensation in case of death is removed to the supreme court by certiorari, the supreme court accepts the finding of the common pleas court upon the facts, if there be any legal evidence to warrant them. Sexton v. Newark Dist. Teleg. Co. (1913) 84 N. J. L. 85, 86 Atl. 451, 3 N. C. C. A. 569, affirmed 86 N. J. L. 791, 91 Atl. 1070; Bryant v. Fissell (1913) 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585 Where the employer and employee assent, whether expressly or by implication of the statute, to the workmen's compensation act, they assent to the whole scheme of the act, a part of which is that the decision of the trial judge as to all questions of fact shall be conclusive and binding, and that the supreme court will not review his finding as to the duration of liability where the evidence permits it. Scott v. Payne Bros. (1913) 85 N. J. L. 446, 89 Atl. 927, 4 N. C. N. C. 682. If, in any reasonable view of the evidence, it will support, either directly or by fair inference, the findings made by the Commission, then such findings are conclusive upon the court. Milwaukee v. Industrial Commission (1915) 160 Wis. 238, 151 N. W. 247. The court said: "It is not the scheme of the act to make the court a reviewer of facts. Its office is to relieve against fraud, to keep the Commission within its jurisdictional bounds, and to correct an award not supported by the facts found." The finding that an employee had lead poisoning must stand, if there was some testimony to support it. Re Doherty (1915) Mass., 109 N. E. 887. The finding by a committee on arbitration affirmed by the Industrial Accident Board, that the accident occurred while the employee was in the employment of the defendant, is conclusive where there is some evidence to support it. Grove v. Michigan Paper Co. (1915) Mich., 151 N. W. 554. Where there is evidence to support the finding of the Industrial Accident Board that the injury did not arise by reason of the intentional and wilful misconduct of the employee, such finding is conclusive on the court on certiorari. Rayner v. Sligh Furniture Co. (1914) 180 Mich. 168, ante, 22, 146 N. W. 665, 4 N. C. C. A. 851. The Minnesota supreme court cannot interfere with a finding of the district court that an employee was not intoxicated at the time of his death, where there was evidence tending to support such finding. State ex rel. Nelson-Spelliscy Implement Co. v. District Ct. (1914) 128 Minn. 221, 150 N. W. 623. The question of dependency of the claimant for the death of an employee is settled by the findings of the commissioner in the absence of anything to indicate error of law in making the findings, or drawing conclu 4 5 clusion.99 The finding of the Industrial findings based on disputed questions of Accident Board stands upon the same fact or conflicting evidence cannot be footing as the verdict of a jury or a set aside.3 finding of the court, and will not be set aside unless wholly unsupported by the evidence; in the absence of conflict in the evidence that goes to show a claimant's right to participation in the workmen's compensation fund, the Commission is regarded in the supreme court as a demurrant to the evidence, and if the evidence would sustain a verdict of the jury in favor of the claimant, the claim is regarded as sufficiently proved.2 So, sions from them. Kennerson v. Thames Towboat Co. (1915) 89 Conn. 367, post, 436, 94 Atl. 372. An award of compensation as for the loss of the use of the hand will not be interfered with where it was made by consent of the attorney representing the appellant. Cunningham v. Buffalo Copper & Brass Rolling Mills (1915) App. Div. 155 N. Y. Supp. 797. The findings of the Commission upon the question whether or not the accident was one arising out of and in the course of the employment is conclusive upon the fact if there is some evidence to support them. Kingsley v. Donovan (1915) App. Div. -, 155 N. Y. Supp. 801. 99 Milwaukee Coke & Gas Co. v. Industrial Commission (1915) 160 Wis. 247, 151 N. W. 245. 1 Pigeon's Case (1913) 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737, 4 N. C. C. A. 516; Re McPhee (1915) Mass. 109 N. E. 633; Re Savage (1915) Mass. 110 N. E. 283. 2 Poccardi v. Public Service Commission (1915) W. Va. post, 299, 84 S. E. 242, 8 N. C. C. A. 1065. 3 An order of the court of common pleas based upon disputed questions of fact will not be set aside. Jackson v. Erie R. Co. (1914) 86 N. J. L. 550, 91 Atl. 1035, 6 N. C. C. A. 944. The disposition by the Commission of questions of fact on which the evidence was conflicting is final and conclusive upon the court upon a review on certiorari. Western Indemnity Co. v. Pillsbury (1915) Cal. 151 Pac. 398. 4 International Harvester Co. v. Industrial Commission (1914) 157 Wis. 167, 147 N. W. 53, 5 N. C. C. A. 822. An award of compensation made without proof that the injury was caused "by accident arising out of and in the course of the employment" must be annulled when attacked on certiorari. Englebretson v. Industrial Acci. Commission (1915) Cal. -, 151 Pac. 421. Upon a rescript of the record to the Industrial Accident Board for correction and amplification, the Board has no power to make a new finding. Re Doherty (1915) Mass., 109 N. E. 887. The supreme judicial court will, where all the material evidence is reported, take cog But a Commission or trial court cannot make an award not supported by any evidence; nor can it base an award on mere conjecture or surmise; nor, according to the weight of authority, can it base an award on hearsay evidence only. The hearsay rule of evidence is not a "technical" rule of evidence, within the meaning of § 77 of the California act, which provides that the Commission shall not be bound by the technical nizance of the contention that the finding of the majority of the committee of arbitration as affirmed by the Industrial Accident Board, and in turn by the superior court, is not supported by the evidence reported. Fisher's Case (1915) 220 Mass. 581, 108 N. E. 361. If the record discloses that a finding of fact is entirely without legal evidence tending to support it, such finding amounts to an error of law, and will be reviewed by the court upon appeal and set aside. Jillson v. Ross (1915) R. I., 94 Atl. 717. 5 Facts found by the Industrial Accident Board, to be conclusive, must be based on competent legal evidence, and not on bare supposition, guess, or conjecture, nor on rumor or incompetent evidence. Keck v. Whittlesberger (1914) 181 Mich. 463, 148 N. W. 247. 6 An award based merely on hearsay evidence cannot be sustained. Employers' Assur. Corp. v. Industrial Acci. Commission (1915) Cal., 151 Pac. 423. Hearsay evidence cannot be made the basis of a finding of fact. Reck v. Whittlesberger (Mich.) supra. The court said that, while it is the intent of the compensation act to adjust controversy by concise and summary proceedings, unhampered by technical form, yet the elementary and fundamental principles of a judicial trial must be observed, and it is not the intent of the act to throw aside all safeguards by which judicial investigations are recognized as best protected. Although the Industrial Accident Board is not a court in the strict meaning of the word, and its members are not judicia! officers within the Constitution, nevertheless such board may be considered a court within the meaning of Revised Laws, chap. 175, § 66, which provides that "a declaration of a deceased person shall not be inadmissible in evidence as hearsay, if the court finds that it was made in good faith before the commencement of the action, and upon the personal knowledge of the declarant." Pigeon's Case (1913) 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1015A, 737, 4 N. C. C. A. 516. The court further held that the word "action," as used in the latter part of the statute quoted above, would be construed to embrace proceedings under the compensation act. |