388. PERSONS ENTITLED TO COMPENSATION FOR DEATH OF EM-
PLOYEE (DEPENDENTS).
Customary receipt of financial assistance from another does not make re-
cipient a dependent or partial dependent within the Act. Gherardi v.
Connecticut Co. (Conn.).
Ascertainment of dependents is made as of time of injury. Bott's Case. In
re Employers' Liability Assur. Corp, Ltd. (Mass.).
Daughter of deceased servant's widow, though member of servant's family
at time of death, not being his child, is not entitled to compensation.
Holmberg's Case (Mass.)
389. SUBROGATION TO RIGHTS OF INJURED EMPLOYEE.
Where insurance carrier, liable for payment of death claim to next of kin,
has taken assignment from them of cause of action against party causing
death, it cannot sue thereon, such right being in the executor or ad-
ministrator. Travelers' Ins. Co. v. Louis Padula Co., Inc. (N. Y.).
Vernon's Sayles' Ann. Civ. St. 1914, art. 246qq. only gives right of subroga-
tion when cause of action for injury to employee caused by third person
has vested in injured employee-elevator company which caused death
of employee of subcontractor painting store building, which gave work
of remodeling and repairing to independent contractor, not having be-
come liable to deceased employee for any sum under Compensation Act,
no right of subrogation against elevator company is given by Vernon's
Sayles, Ann. Civ. St. 1914, art. 5246qq, to insurer of merchandise com-
pany and independent contractor, which paid award for death. Ætna
Life Ins. Co. v. Otis Elevator Co. (Tex.)
Insurance association is not subrogated to rights of employee against third
person. City of Austin v. Johnson (Tex.)..
Where injured servant accepts compensation, insurer is subrogated to ser-
vant's cause of action against third person whose negligence caused in-
jury. Labuff v. Worcester Consol. St. Ry. Co. (Mass.)..
§ 390. PAYMENT OF COMPENSATION.
-AUDIT OF CLAIMS INCURRED OR PAID BY BOARDS OR COM-
MISSIONS.
-TERMINATION OF PAYMENTS.
393. MEDICAL ATTENDANCE AND SERVICES.
Where employer fully complied with medical aid requirements of the act
during first two weeks after injury, it was not estopped from invoking
benefits of the act. Boyer v. Crescent Paper Box Factory, Inc. (La.).... 71
Employees under term "surgical aid" are entitled to splints, crutches, artifi-
cial legs, artificial eyes, etc. Olmstead v. Lamphier et al. (Conn.).............. 774
NATURE AND FORM OF REMEDY.
Commission may proceed in mandamus to compel employers to secure pay-
ment of compensation to employees required by the act. Industrial Com-
mission of Utah v. Daly Mining Co. (Utah).
Where employer has rejected Compensation Act and injured employee has
not, employee may sue under Code Supp. 1913, Sec. 2477m; Section
2477m2, not providing for exclusive remedy. Balen v. Colfax Consol.
Coal Co. (Iowa)
Contract to pay weekly sums in settlement of liability of employer for death
of employee equal to maximum provided in act and supplemented thereto
may be enforced by persons claiming payments, in Supreme Court by com-
mon law action. Holzapfel et al. v. Hoboken Manufacturers' R. Co.
(N. J.)
$395. WHAT LAW GOVERNS.
Whether employee was engaged in "Interstate commerce" at time he was
injured, depends on the character of the act at that time-fact that
appliance he was repairing when injured might be used in interstate
commerce does not establish that cause of action falls within act. O'Dell
v. Southern Ry. Co. (U. S.)..
Where railroad and employee are both engaged in interstate commerce, such
employee does not assume the risk of injury inflicted as result of negli-
gence of fellow employee. Eskelsen v. Union Pac. R. Co. (Neb.).....
Railway signal maintainer, who was furnished by his employer, interstate
carrier, tricycle to make rounds was engaged in interstate commerce
when returning to his home after leaving last signal. Louisville & N.
R. Co. v. Mullins' Adm'x. (Ky.)...
Helper of driver of delivery truck, voluntarily gave up his seat to girls on
way home from work and stood on running board, and who when truck
struck obstruction in road was jolted off truck and sustained fatal in-
juries, was injured while engaged in course of employment, as how he
happened to be sitting where he was at time he fell was immaterial.
Siglin et al. v. Armour & Co. (Pa.)...
Where lumber is loaded in box car in one state and shipped to another state
to be used in manufacture of doors for grain cars designed for handling
interstate shipments of grain, employee who unloaded lumber in latter
state is engaged in "interstate commerce." Gulf, C. & S. F. Ry. Co. v.
Drennan (Tex.)
Where decedent was employed in interstate commerce by railroad company
on one of its boats, then being used for that purpose, the case fell within
Employers' Liability Act. The Erie Lighter 108 (U. S.).........
Return of brakeman to his engine when struck and injured was so im-
mediately connected with previous act as to be necessary incident thereto
so as to fall within Employers' Liability Act. Erie R. Co. v. Downs
(U. S.)
Laborer, injured while cleaning soot from boiler in railroad's power plant,
generating electricity for operation of trains on one railroad wholly in
New York and on another partly in New York and partly in New Jersey
was engaged in "interstate commerce within federal act. Guida V.
Pennsylvania R. Co. (N. Y.).
Federal Employers' Liability Act refers to "interstate commerce" in practical
sense and test is whether employee at time of injury was engaged in
interstate transportation or in work so closely related thereto as to be
practically part thereof. Eskelsen v. Union Pacific R. Co. (Neb.)........ 665
Employee of plaster manufacturing company while engaged in performance
of his duties in unloading rock from vessel lying alongside pier in East
River, was engaged in performance of maritime contract and Com-
mission had no jurisdiction. Keator et al. v. Rock Plaster Mfg. Co.
et al.-Appeal of State Industrial Commission (N. Y.).
Longshoreman loading a vessel in navigable waters was performing a mari-
time contract and commission would have no jurisdiction. Anderson v.
Johnson Lighterage Co. et al.-Appeal of State Industrial Commission
(N. Y.)
Timekeeper of gang repairing track used in interstate commerce, killed while
crossing tracks on his way to telegraph report to roadmaster, was en-
gaged in interstate commerce. Crecelius v. Chicago M. & St. P. Ry.
Co. (Mo.)
Federal Safety Appliance Act excludes application of Workmen's Compensation
Act in all cases in which former act is applicable, as Congress having
entered upon field of regulation, the paramount character of its authority
excludes state regulation on the subject. Kenna v. Calumet, H. & S.
E. R. Co. (Ill.)
§ 396. JURISDICTION OF COURTS.
Court of Appeals has no jurisdiction to entertain appeal from Appellate
Division on question certified by Industrial Board to Appellate Division.
In re Workmen's Compensation Fund. Self-Insurers' Ass'n et al. v.
State Industrial Commission. (N. Y.).
Under act giving commission full power to determine all questions within its
jurisdiction and making its decision final, decision of commission is final
and free from judicial review only when within its jurisdiction-commis-
sion does not have exclusive power to determine what matters come
within its jurisdiction, but that is for the courts. Industrial Commission
of Utah v. Evans, District Judge (Utah)...
397. BOARDS AND COMMISSIONS.
Exclusive maritime jurisdiction of the United States does not extend to
claims arising out of work done on vessels prior to launching, and where
parties stipulated facts under Workmen's Compensation Law, commission
had jurisdiction. Employers' Liability Assur. Corp., Ltd., of London
Eng., v. Industrial Accident Commission (Cal.)..
Though the incomplete agreement was approved by board, its jurisdiction
was not thereby terminated, the employee having right to ignore agree-
ment in view of Sec. 57, making agreement for compensation voidable
by employee if not in form prescribed by board and filled with it.
Standard Cabinet Mfg. Co. v. Iliff (Ind.)..
Employee of plaster manufacturing company while engaged in performance
of his duties in unloading rock from vessel lying alongside pier in East
River, was engaged in performance of maritime contract and Com-
mission had no jurisdiction. Keator et al. v. Rock Plaster Mfg. Co.
et al.-Appeal of State Industrial Commission (N. Y.).
Longshoreman loading a vessel in navigable waters was performing a mari-
time contract and commission would have no jurisdiction. Anderson v.
Johnson Lighterage Co. et al.-Appeal of State Industrial Commission
(N. Y.)
Where, although federal courts had exclusive jurisdiction, State Industrial
Commission assumed to make award, fact that both employer and in-
surance carrier acquiesced in award to extent that certain payments were
made thereunder and no appeal taken therefrom, did not estop them
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)
NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPENSA-
TION.
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 Cali-
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.)
MEDICAL EXAMINATION OF CLAIMANT.
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.
Corp. (Mass.)
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.)... 466
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 support-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 so far as to show condition at time of accident.
Beckles' Case. Flint v. Employers' Liability Assur. Corp. (Mass.) ...... 278
Verdict of coroner's jury that insured died from septicæmia 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.).............
§ 405. — WEIGHT AND SUFFICIENCY.
Evidence held not to show that servant's arsenical poisoning was disease
incident to occupation. Matthiessen & Hegeler Zinc Co. V. Industrial
Board et al. (H.)
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.)...
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