38 cumstantial evidence may be sufficient. Further, although the statute authorizes the board or commission to disregard the "technical rules" of evidence, an award cannot stand where a finding of a jurisdictional fact is without any support except that of hearsay testimony, the rule against hearsay not being a "technical rule. ' '39 Hence an award cannot be sustained on hearsay evidence of statements of the employee as to the cause of the injury.40 Statements of the employee constituting part of the res gestae may, however, support an award.11 Where the evidence is not conflicting, it has been held that the commission stands in the position of a demurrant to the evidence, and if a verdict of a jury in favor of the claimant would be sustained by the evi 41 dence, the claim is regarded as sufficiently proved.12 It is the duty of the commission, under such circumstances, to give the claimant the benefit of inferences arising in his favor from the facts proved, in the absence of direct evidence.43 Evidence giving rise to inferences consistent with the theory of liability and inconsistent therewith, in equal degree, is insufficient." Unexplained absence of the testimony of an attending physician is not substantial evidence, overcoming the statutory presumptions." [◊ 115] g. Findings and Award. There should be a finding of facts, although the statute does not expressly so require.46 Even in the absence of statutory requirements, the findings of the board or commission should be specific, although they should 47 will in many cases not only be fairer to the parties who may wish to seek a review of the final determination reached, but will also be helpful to the reviewing court in its effort to ascertain whether that determination may be sustained." Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 704, 151 P 398. alcoholism. Sullivan v. Industrial any support except hearsay state-, practice of making specific findings Engineering Co., 173 App. Div. 65, ments and explanations of the em158 NYS 970. (5) Continuing phys-ployee to various persons as to the ical incapacity to perform work of motorman. Foley v. Detroit United R. Co., (Mich.) 157 NW 45. (6) Of death of night watchman by violence. Western Grain, etc., Co. v. Pillsbury, (Cal.) 159 P 423. (7) That employer had no specific rule requiring barge deck hands to remain within the cabin during trip between wharves. W. R. Rideout Co. v. Pillsbury, (Cal.) 159 P 435. [c] Evidence held not to sustain finding.—(1) That drill press operators with the sight of one eye impaired were discriminated against by employers. International Harvester Co. v. Industrial Commn., 157 Wis. 167, 147 NW 53, AnnCas1916B 330. (2) That employee stumbled over obstruction in street. Collins v. Brooklyn Union Gas Co., 171 App. Div. 381, 156 NYS 957. (3) That gonorrheal infection was caused by an injury incidental to or growing out of employment. Voelz V. Industrial Commn., 161 Wis. 240, 152 NW 830. (4) That sciatic pain occasioning renewed disability resulted from original injury to back. Southwestern Surety Ins. Co. v. Pillsbury, (Cal.) 158 P 762. (5) Of dependency of parent. Tirre v. Bush Terminal Co. 172 App Div. 386, 158 NYS 883. (6) Questions and answers as follows: "This accident happened during my duties which called me to the factory. Q. You were attending to a customer when the accident happened? A. Yes. Q. The customer was in the showroom, and you were going into the factory? A. Yes. Q. What have you, a broken kneecap? A. Yes. are insufficient to sustain a finding that "while Robert Lyon was passing through the factory, he slipped on a stone floor and fell, receiving a facture of the right patella, by reason of which injury he was disabled from working from the date of the accident to August 6, 1915, and on that date was still disabled." Lyon v. Windsor, 173 App. Div. 377, 378, 159 NYS 162. 38. Western Grain, etc., Co. V. Pillsbury, (Cal.) 159 P 423; De Mann v. Hydraulic Engineering Co., (Mich.) 159 NW 380. [a] Death of employee may be established without finding of body. Western Grain, etc., Co. v. Pillsbury, (Cal.) 159 P 423. 39. Employers' Assur. Corp. V. Industrial Acc. Commn., 170 Cal. 800, 151 P 423; Englebretson v. Industrial Acc. Commn., 170 Cal. 793, 151 P 421. 40. Englebretson V. Industrial Acc. Commn., 170 Cal. 793, 151 P 421; Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 113 NE 507 [rev 169 App. Div. 450, 155 NYS 1]. [a] Illustrations.-(1) An award of damages for the death of an employee from an injury consisting of a sprain of the right wrist or forearm, accompanied by a bruise and an abrasion of the skin, followed by blood poisoning and death, without cause, was without legal proof of the jurisdictional fact that the injury was accidental, and the commission was without power to award compensation therefor. Employers' Assur. Corp. V. Industrial Acc. Commn., 170 Cal. 800, 151 P 423. (2) Hearsay testimony of statements of deceased servant, while in nervous condition suffering from delirium tremens in hospital, that he was injured when a heavy cake of ice fell upon him is insufficient to overcome positive evidence of witnesses that no ice fell on him, being in fact no evidence. Carroll V. Knickerbocker Ice Co., 218 N. Y. 435, 113 NE 507 [rev 169 App. Div. 450, 155 NYS 1]. 41. Milwaukee First Nat. Bank v. Industrial Commn., 161 Wis. 526, 529, 154 NW 847 (where the court said: "It is insisted that the evidence of Schrantz to the effect that at about 9 o'clock deceased entered the room where he was working, sucking his thumb, and stated that he had pricked it, was not competent evidence as part of the res gestae. Deceased was at the bank on duty on the night in question. He appeared before Schrantz sucking his thumb and made the statement that he had pricked it. It also appears from the evidence that it was his custom to suck the part injured immediately upon receiving an injury, and that he was in perfect condition when he entered the bank that evening. We think the evidence of Schrantz was competent as part of the res gestae"). [a] What constitutes res gesta. -Statements of deceased while in hospital suffering from delirium tremens some hours after alleged accident as to nature of accident are not admissible as res gestæ, but are narratives of past events. Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 113 NE 507 [rev 169 App. Div. 450, 155 NYS 1]. 42. Poccardi V. Public Service Commn., 75 W. Va. 542, 84 SE 242, LRA1916A 299. 43. Poccardi V. Commn., 75 W. Va. LRA1916A 299. Public Service 542, 84 SE 242, 44. Poccardi V. Public Service Commn., 75 W. Va. 542, 84 SE 242, LRA1916A 299. 45. Sullivan v. Industrial Engineering Co., 173 App. Div. 65, 158 NYS 970. 46. Foley V. Detroit United R. Co., (Mich.) 157 NW 45. 47. Gleisner v. Gross, 170 App. Div. 37, 155 NYS 946. "It may be proper at this point to say a word in approval of the course adopted by the commission in amending its findings of fact so as to show specifically the occurrences which, in its view of the evidence, were shown to have taken place. While we do not question the legal power of the commission to limit the findings to the ultimate facts set forth in the statute, the [a] Necessity of detailed andings.-(1) "The State Industrial Commission will do well, in the formulation of findings upon which are based its conclusions approving or rejecting a claim, to state, in somewhat greater detail than was done in this instance, the facts which lead it to a determination that an accident under consideration was sustained in the course of an 'employment' whose occupational mishaps the Legislature has made a trade risk and a charge against the cost of the industry's product." Gleisner v. Gross, 170 App. Div. 37, 39, 155 NYS 946. (2) A further claim suggests that since the Act does not provide for a detailed finding of facts, nor for the separation of questions of fact and law, it would be seldom possible to have a ruling on questions of law reviewed on appeal. Under our interpretation the finding and award must give all facts essential to the case in hand, and such questions of law as were ruled upon by the commissioner and such as were made by the appellant. No other or further detailed finding is required. The finding' of § 26 means a finding in the sense in which that term is used in our statutes, requiring a finding of the facts upon which the judgment is based. General Statutes, $$ 759, 763.' Hotel Bond Co.'s App., 89 Conn. 143, 151, 93 A 245. (3) The findings of the commission in proceedings under the workmen's compensation law that this decedent was employed as a foreman by a New York company, and that for the purposes of his work his employer sent him from New York "to the place where the accident happened,' were evasive and valueless as the basis of an award, and rendered erroneous an award thereon, where it was admitted that the deceased was not a foreman in the general and regular employ of the company, but had been engaged while outside the state for the particular job on which he was employed outside the state at the time of his death. Gardner v. Horseheads Constr. Co., 171 App. Div. 66, 156 NYS 899. [b] Physicians' fees. "Section 29 of the act provides that if notice in writing be given to the employer of a claim for services rendered to the injured employee in treating the injury, by any physician or other person, for which the employer is made liable, such claim shall be a lien against the award, and that the commission must fix the amount thereof in a reasonable sum, and may, in its discretion, order the same paid directly to the person entitled. The award in this case include only the facts claimed to have been established by the evidence.48 The commission is not required to make specific findings as to probative facts.49 Probative facts found cannot prevail over the findings of ultimate facts unless necessarily in conflict with such findings.50 An award is not invalid because it has appended an optional award to tender a surgical operation, with the right to discontinue payments if the claimant refuses such treatment, since the optional portion thereof may be disregarded by the employer. An order awarding compensation is not erroneous in not in terms limiting the time of payment to the period fixed by statute, since the statute itself makes that limitation.52 51 Conclusiveness. An employee failing to elect to come under the workmen's compensation act and failing to appeal from an adverse decision of the commission under the act is bound by the decision.53 A finding by the compensation commission is conclusive as between the employer and the employee in the employee's action at law for negligence.54 Where the jurisdiction of the board depends on the existence of certain facts, it has jurisdiction to determine whether or not those facts exist, and its determination that they exist is conclusive on a collateral attack.55. A finding by a compensation commission, that an employee's injury was not due to an accident arising out of the employment, by necessary implication finds that the injury was not due to the negligence of the employer or to his failure to provide safety devices.56 Setting aside. Although the statute provides that findings may be set aside if procured by fraud, they will not be set aside on that ground for false testimony by the claimant and his concealment of ma directs that the physicians' fees for [c] Cause of injury.-"The commission made no finding concerning the cause of the slipping of the bone and the additional disability ensuing therefrom other than the general finding that by reason of said accident and injury the applicant sustained a temporary, total disability lasting from July 14, 1914, to October 13, 1914, and for an indefinite time thereafter not susceptible of being foretold. There is a statement that the evidence is insufficient to show that it was due to any disobedience by McCay of the orders of his physician. But this cannot be regarded as a finding that it was due to natural causes." Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 321, 153 P 24. 48. Thompson v. Twiss, 90 Conn. 444, 97 A 328. "The finding of a commissioner should not contain excerpts from evidence and purely evidential facts, but should merely state the facts found, the claims of law made, and the rulings on evidence excepted to; in short, it should conform to the finding required of the Superior Court by the Rules of Court and the practice prevailing in that court. Hartz V. Hartford Faience Co., 90 Conn. 539, 540, 97 A 1020. terial facts before the commission, where the correctness of such a construction of the act is established by a reference to the report of the legislative drafting committee. 57 Under a power to review an award at any time, the commission may set aside its award after the expiration of the time for an appeal, and grant a rehearing.58 [§ 116] 2. On Review of Arbitration Committee-a. In General. In those jurisdictions in which provision is made for a primary determination of the facts and an award by an arbitration committee, the statute usually provides for a review of such award on application to the administrative board or commission.5 59 The employee is not, by an agreement of settlement based on a finding by the arbitrators that total disability will cease on a certain date, precluded from questioning such finding on an appeal.60 61 [ 117] b. Production and Reception of Evidence. On review by the board, a new hearing on the facts is not ordinarily a matter of right; but the reception of new evidence is discretionary.82 The commission is not required to reopen the proofs after the day set for the hearing to allow the introduction of additional evidence.63 Depositions. Under a power to enforce the attendance of witnesses before the board, a court has no power to issue letters rogatory or commissions to take depositions to obtain testimony to be used before the board.64 67 66 49. Frankfort Gen. Ins. Co. V. Pillsbury, (Cal.) 159 P 150. Acc. 50. Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398. Compare Smith V. Industrial Commn., 26 Cal. A. 560, 147 P 600 (where it is said that "while findings of evidentiary facts are permissible, these will always be controlled by findings of the ultimate facts where a conflict is presented between the two"). [§ 118] c. Burden of Proof.65 The burden rests on the claimant to establish the facts showing that the case is a proper one for an award of compensation and establishing the jurisdiction of the board, such for example as showing that the into their power to draw inferences from matters or base conclusions upon information outside the evidence, or for some other reason the employee may have failed to present his real case. The present case appears to be an instance where, if the introduction of additional evidence is desired by the employee, there should be a further hearing. The case is to be recommitted to the Industrial Accident Board, where the employee may move for a hearing and for the introduction of further evidence. If such motion is granted and upon further hearing new facts are shown upon this point, the case should be considered anew upon all evidence introduced by all parties. Otherwise, a finding must be made against the employee.' In re Doherty, 222 Mass. 98, 101, 109 NE 887. 51. Southwestern Surety Ins. Co. v. Pillsbury, (Cal.) 158 P 762. 52. Southwestern Surety Ins. Co. v. Pillsbury, (Cal.) 158 P 762. 53. Karny v. Northwestern Malleable Iron Co., 160 Wis. 316, 151 NW 786. 54. Naud v. King Sewing Mach. Co., 95 Misc. 676, 159 NYS 910. 55. Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P 35. 56. Naud v. King Sewing Mach. Co., 95 Misc. 676, 159 NYS 910. 57. Pellett V. State Industrial Commn., 162 Wis. 596, 156 NW 956. 58. Beckman V. Oelerich, 160 NYS 791. 59. See statutory provisions. 60. In re Duprey, 219 Mass. 189, 106 NE 686. 61. In re Fierro, 223 Mass. 378, 111 NE 957; In re Brightman, 220 Mass. 17, 107 NE 527, LRA1916A 321. 62. In re Doherty, 222 Mass. 98, 109 NE 887. [a] Explanation of statute.-"It is provided in the workmen's compensation act, St. 1911, c. 751. Part III. § 10, as amended by St. 1912, c. 571, 13, that 'No party shall as a matter of right be entitled to a second hearing upon any question of fact.' This means that the introduction of new evidence is a matter of discretion ordinarily. Commonly there should not be a rehearing. Where there has been a full trial a final decree should be entered. There may have been misconception on the part of the arbitration committee, or the Industrial Accident Board, as 63. Redfield v. Michigan Workmen's Compensation Mut. Ins. Co., 183 Mich. 633, 150 NW 362. 64. In re Martinelli, 219 Mass. 58, 106 NE 557. 65. Burden of proof: On arbitration under English act see supra 108. On original proceedings before board or commission see supra § 112. On determination by court see infra § 137. 66. In re Sanderson, (Mass.) 113 NE 355; In re Von Ette, 223 Mass. 56, 111 NE 696, LRA1916D 641; In re Sponatski, 220 Mass. 526, 108 NE 466, LRA1916A 333; In re King, 220 Mass. 290, 107 NE 959. "The burden of proving the essential facts necessary to establish a case warranting the payment of compensation rests upon the dependents in a case arising under the workmen's compensation act as much as it does upon a plaintiff in any proceeding at law." In re Sponatski, 220 Mass. 526, 527, 108 NE 466, LRA1916A 333. 67. Shevchenko v. Detroit United R. Co., (Mich.) 155 NW 423. 69 jury arose out of, and in the course of, the employment.68 Where the claim is by a dependent of a workman who was accidentally killed, and whose evidence is therefore not available, if facts are proved, the natural and reasonable inference from which is that the accident happened while the deceased was engaged in his employment, it falls on the employer, if he disputes the claim, to prove that the contrary was the case. So where an employee is found dead at his post of labor, without direct evidence as to the cause, an inference may arise of an accident while the employee was engaged in his employment. But such an inference does not arise where it is shown that the deceased had left the immediate locality of his employment at a time when work was suspended, and was doing nothing in the scope of his employment."1 Where there is no evidence of suicide, the presumption against the commission of a crime will support a finding that death was not self-inflicted.72 70 [ 119] d. Admissibility of Evidence. Hearsay evidence as to the cause of injury is inadmissible,73 although its admission will not always demand a reversal of an award of compensation.74 A memorandum of the accident made by the employer's foreman, on a report of the injury to him by the employee under the employer's rules, is admissible as an admission by the employer,75 and the same rule has been applied to a report of the accident made to the accident board in accordance with 68. Dragovich V. Iroquois Iron Co., 269 III. 478, 109 NE 999; In re Sanderson, (Mass.) 113 NE 355; In re Fierro, 223 Mass. 378, 111 NE 957; In re Von Ette, 223 Mass. 56, 111 NE 696, LRA1916D 641; In re Savage, 222 Mass. 205, 110 NE 283; In re Doherty, 222 Mass. 98, 109 NE 887; In re Sponatski, 220 Mass. 526, 108 NE 466, LRA1916A 333; Cline v. Studebaker Corp., (Mich.) 155 NW 519; McCoy v. Michigan Screw Co., 180 Mich. 454, 147 NW 572, LRA 1916A 323. "The burden rests upon the one claiming compensation to show by competent testimony, direct or circumstantial, not only the fact of an injury, but that it occurred in I connection with the alleged employment, and both arose out of and in the course of the service at which the injured party was employed." Hills v. Blair, 182 Mich. 20, 26, 148 NW 243. [a] Illustration.-There can be no recovery, under the workmen's compensation act, where one at work in a car on a sidetrack left it and was killed by an engine on the main track, in the absence of evidence that it was any part of his employment to cross such track, or to show why he was there. In re Savage, 222 Mass. 205, 110 NE 283. 69. Papinaw v. Grand Trunk R. Co., (Mich.) 155 NW 545; Grant v. Glasgow, etc., R. Co., 1 BWCC 17, 45 Sc. L. Rep. 128. Inferences on arbitration proceeding see supra § 108. 70. Hills v. Blair, 182 Mich. 20, 148 NW 243. 71. Hills v. Blair, 182 Mich. 20, 148 NW 243. 72. In re Von Ette, 223 Mass. 56, 111 NE 696, LRA1916D 641. 181 73. Reck V. Whittlesberger, Mich. 463, 148 NW 247, AnnČas1916C 771. Admissibility of evidence: On arbitration under English act see supra § 108. On original proceedings before board or commission see supra § 113. the requirement of the statute.76 On a question of 85 .79 [§ 120] e. Sufficiency of Evidence. The findings of the board must be supported by competent legal evidence,81 which must go farther than to show a state of facts which is as equally consistent with no right to compensation as it is with such right,82 although it may be but slight83 and need not be direct. Hearsay evidence as to the cause of the injury, such as statements thereof made by a deceased employee,86 is not sufficient to sustain an award of compensation. An admission by the employer, through his agent, of an injury to the employee in the course of his employment may sustain an award, although not made on the agent's personal knowledge of the facts.87 So a report of the accident made by the employer under the requirement of the statute may constitute sufficient prima facie evidence.8 88 [121] f. Findings. A finding which is simply [§ 121] f. 75. Fitzgerald v. Lozier Motor Co., 187 Mich. 660, 154 NW 67. 76. Reck v. Whittlesberger, 181 77. 79. Pigeon's Case, 216 Mass. 51, 80. Pigeon's Case, 216 Mass. 51, 102 NE 932, AnnCas1915A 737. 81. In re Von Ette. 223 Mass. 56. 111 NE 696, LRA1916D 641; Reck v. Whittlesberger, 181 Mich. 463, 468, 148 NW 247, AnnCas1916C 771. "The elements that need be proved are quite different from those in the ordinary action at law or suit in equity, but, so far as these elements are essential they must be proved by the same degree of probative evidence." In re Sponatski, 220 Mass. 526, 528, 108 NE 466, LRA1916A 333. "The board does not act solely as a mere arbitrator. It has various plenary powers well defined, and its status is unique in the particular that it performs in combination both administrative functions and certain of the duties of a court, a referee, and an arbitration board. Its findings of facts upon hearings are conclusive, and cannot be reviewed, except for fraud, provided, necessarily, that any competent, legal evidence is produced from which such facts may be found. Facts cannot be evolved from the inner consciousness of that tribunal on bare supposition, guess, or conjecture, nor on rumor or incompetent evidence. To so determine the rights of parties would be to act outside the authority conferred by the act, and without jurisdiction." Reck v. Whittlesberger, supra. Sufficiency of evidence: On arbitration under English act On original proceeding before board On determination by court see infra 82. In re Sanderson, (Mass.) 113 NE 355; In re Von Ette, 223 Mass. On determination by court see infra 56, 111 NE 696., LRA1916D 641; In re § 138. Savage, 222 Mass. 205, 110 NE 283; 887; In re Sponatski, 220 Mass. 526, 108 NE 466, LRA1916A 333. [a] Evidence held to show (1) That the injury occurred in the course of deceased's employment and proximately caused his death. Fitzgerald v. Lozier Motor Co., 187 Mich. 660, 154 NW 67. (2) That paralysis was due to blow on head from mine prop. Frey V. Kerens-Donnewald Coal Co., 271 Ill. 121, 110 NE 824. (3) That deceased's death, by leaping from a hospital window, was caused by insanity caused by his injury. In re Sponatski, 220 Mass. 526, 108 NE 466, LRA1916A 333. (4) That the employee did not refuse a medical examination and did' not obstruct same. In re McLean, 223 Mass. 342, 111 NE 783. (5) That the loss of the claimant's eye was directly due to an infectious disease with which the employee was previously affected, and therefore not to support an inference that it arose out of and in the course of his employment. McCoy v. Michigan Screw Co., 180 Mich. 454, 147 NW 572, LRA 1916A 325. [b] Evidence held not to show. (1) That lead poisoning was caused by occupation. In re Doherty, 222 Mass. 98. 109 NE 887. (2) That hemorrhage occasioning death was caused by fall from wagon. In re Sanderson, (Mass.) 113 NE 355. 83. In re Von Ette, 223 Mass. 56, 111 NE 696, 697, LRA1916D 641. "If the evidence upon the questions involved is slender but is sufficient to satisfy a reasonable man, a case has been made out." In re Von Ette, supra. 84. In re Von Ette, 223 Mass. 56, 111 NE 696, LRA1916D 641; Cline v. Studebaker Corp., (Mich.) 155 NW 519; Tirre v. Bush Terminal Cot, 172 App. Div. 386, 158 NYS 883. 85. Reck V. Whittlesberger, 181 Mich. 463, 148 NW 247, AnnCas1916C 771. 86. Reck V. Whittlesberger, 181 Mich. 463, 148 NW 247, AnnCas1916C 771 and note. 87. Fitzgerald v. Lozier Motor Co., 187 Mich. 660, 154 NW 67. 88. Reck V. Whittlesberger, 181 Mich. 463, 148 NW 247, AnnCas1916C 771. 89 90 a categorical repetition of the words in the statute by which the result is reached, entitling the employee to compensation without a statement of what the personal injury was, standing alone, is indecisive of the right to compensation. The findings should state whether the hearing was confined to the matters reported by the committee on arbitration, or whether the board received additional evidence.9 It is proper, if not necessary, for the board to set out the evidence or the substance of it.91 But where the industrial accident board "affirms and adopts the findings and decision of the committee of arbitration," resort may be had to the proceedings of that committee and the evidence there reported for the foundation of its conclusions.92 A finding which fixes the amount of compensation on the basis of total disability which it is found will cease on a date stated, subject to the right of the employee to compensation for partial disability dependent on his ability to earn wages, does not amount to an unqualified decision to end all payments under the act at that time.93 Following such a finding a decision continuing payments because of partial incapacity can be made to take effect prior to the date of the application.94 A finding that the employee was not able to earn anything by reason of his injury during a certain period is equivalent to a finding that the employee was totally incapacitated for work during that period. Findings of the industrial accident board in conflict with those of the committee of arbitration govern, 96 and the compensation to an injured servant cannot be reduced on account of findings by the committee.97 95 89. In re Madden, 222 Mass. 487, 111 NE 379, LRA1916D 1000 (where the board found "that, while engaged in the performance of the work for which she was hired, she 'received a personal injury arising out of... her employment aggravating and accelerating a weak heart condition to the point of total incapacity for work' "). 90. In re Brightman, 220 Mass. 17, 107 NE 527, LRA1916A 321. 91. In re Doherty, 222 Mass. 98, 109 NE 887. 92. In re Madden, 222 Mass. 487, 488, 111 NE 379, LRA1916D 1800. 93. In re Hunnewell, 220 Mass. 351, 107 NE 934. [a] Analogy to English practice. "The form of the decision of the board was only that the total disability had ceased, but whether there was a partial disability or not left open for further consideration to be determined somewhat in the light of future ability to get work. The weekly payment was ended absolutely so far as it rested on the basis of total disability, but it was suspended only until the further order of the board, so far as it might later be found to have a sound basis in partial disability. In substance the decision was that total disability was over, but whether there would be a partial disability arising out of the injury was a question as to which they were not at that time prepared to give a decision either way, but desired to leave it open still as a question to be answered as the facts might warrant at some future time. This course is justified by the act. It has been the custom under the English act to award compensation at the rate of a penny a week under these circumstances. Taylor v. London, etc., R. Co., [1912] A. C. 242, 245: The Vessel Tynron v. Morgan, [1909] 2 K. B. 66, 2 BWCC 406. That purpose is manifest in the decision here under review." In re Hunnewell, 220 Mass. 351, 354, 107 NE 934. Suspensory award or declaration of liability see infra § 152. 94. In re Hunnewell, 220 Mass. 351, 107 NE 934. 99 [§ 122] 3. Decree or Judgment on Award. Where provision is made by the act for a transmission of the decision of the board and all papers in connection therewith to a designated court which is required to render a decree in accordance therewith,98 the court is required to render such a decree as the law requires on the facts in the record as found by the board. Although the act may require only the presentation to the superior court of certified copies of an order or decision of the industrial accident board, it is not improper that a petition be filed setting forth briefly the nature of the questions to be decided. Where the statute provides simply for the entry of judgment in accordance with the award the court has no power to inquire into the legality of the action of the board in making the award;2 the judgment should recite and follow the award;3 but such a statute does not contemplate a series of judgments on an award, although a series of executions may be required to enforce payment of the judgment.* [§ 123] 4. Review of Award of Commission— a. In General. The decision of an administrative board is binding only when it is acting within its powers, and when it acts without jurisdiction a remedy may be had through the courts. The statutes ordinarily expressly provide for a court review of the award of the commission or industrial board, although the procedure authorized is quite dissimilar. By some of the acts provision is made for the entry of a decree or judgment by a specified court on the award of the commission, from which decree an appeal or writ of error will lie. Under 95. In re Septimo, 219 Miss. 430, 107 NE 63. 96. In re Septimo, 219 Mass. 430, 107 NE 63. 97. In re Septimo, 219 Mass. 430, 107 NE 63. 98. See statutory provisions. 99. In re McNicol, 215 Mass. 497, 502, 102 NE 697, LRA1916A 306. "The obligation placed upon the Superior Court by the requirement to enter a decree in accordance with the decision is to exercise its judicial function by entering such decree as will enforce the legal rights of the parties as disclosed by the facts appearing on the record." In re McNicol, supra. 1. In re Gould, 215 Mass. 480, 102 NE 693, AnnCas1914D 372. 2. Fitt v. Central Illinois Public Service Co., 273 Ill. 617, 113 NE 155. 3. Brown v. Fuller Co., (Mich.) 159 NW 376. 4. Brown v. Fuller Co., (Mich.) 159 NW 376. 5. Uphoff v. State Industrial Bd., 271 Ill. 312, 111 NE 128; Courter v. Simpson Constr. Co., 264 Ill. 488, 106 NE 350; Borgnis v. Falk County, 147 Wis. 327, 133 NW 209, 37 LRANS 489. [a] Abolition of commission and substitution of new body- The fact that, after appeal is taken from the award of the workmen's compensation commission, such commission is superseded by the industrial commission does not affect any of the questions involved. Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 113 NE 507 [rev 169 App. Div. 450, 155 NYS 1]. 6. See statutory provisions. "The basic principles of all of them [workmen's compensation acts] are the same but they are by no means similar in the methods provided for administering the act. In most of the States the act makes some provision for a court review of the decisions of the board, though their provisions in this respect are very dissimilar, and in a few States no express provision is made for a court review of the action of the board." Courter v. Simpson Constr. Co., 264 Ill. 488, 492, 106 NE 350. [a] In Illinois "one method of review provided, and the one here followed, is suing out of the circuit court a writ of certiorari to the Industrial Board. The circuit court in that proceeding has power to review only questions of law presented by the record. The judgments and orders of the circuit court in such cases may be reviewed by the Supreme Court by writ of error if the judge of the circuit court shall make a certificate stating the case is a proper one to be reviewed, or in case the circuit certifies the case is not a proper one to be reviewed, the Supreme Court may, in its discretion, order a writ of error to issue. Munn V. State Industrial Bd., 274 Ill. 70, 113 NE 110, 111. (2) [b] In Wisconsin (1) review is had by an action against the commission, to which the adverse party must be made defendant, and which must be begun in the circuit court for Dane county; a complaint stating the grounds for which review is sought must be served with the summons, and service on the secretary of the commission or on any member of the commission will be deemed completed service. Acts (1913) с 599; Hammond-Chandler Lumber Co. V. State Industrial Commn., 163 Wis. 596, 158 NW 292. The language of this act to the effect that service on the industrial commission in a specified way, will be deemed a completed service, relates only to service on the commission. HammondChandler Lumber Co. v. State Industrial Commn., supra. (3) The requirement of the act that the adverse party shall be joined as a defendant with the industrial commission, by necessary implication, requires service of the summons to be made on such party, and that he be accorded all the rights of a defendant in an action. Hammond-Chandler Lumber Co. v. State Industrial Commn., supra. 7. See statutory provisions. [a] In Massachusetts (1) under St. (1911) pt 3, § 11, as amended by St. (1912) c 571 § 14, there can be no appeal from a decree of the su other of the acts the provision is for a direct review of the award, by an appellate court. But where, in order to avoid objections to the constitutionality of the acts as involving an unwarranted delegation of judicial powers, the boards or commissions provided to determine claims in the first instance have been held to act in an administrative capacity only, it is obvious that under such a view the jurisdiction of the courts over a so-called "appeal" from such a determination must be regarded as original and not appellate.10 In the absence of an express authorization by the statute a court of original jurisdiction may issue a common-law writ of certiorari to review the decisions of a board, for the purpose of determining whether it had jurisdiction or whether it has exceeded its powers and acted illegally." Where the statute provides for review of the award 13 of the commission by a writ of review or certiorari, such a writ will not issue in advance of a final award,12 but will issue only on the grounds prescribed by the act." A provision in the act as to the jurisdiction of appeals will be construed in accordance with the intent of the legislature as evidenced by the entire act.14 Hence, under a statute conferring jurisdiction of an appeal on the court having jurisdiction over the place where the accident occurred, or over the person appealing from the decision, it has been held that an insurance carrier, appealing, cannot contend that a court in a distant part of the state where its main office is located has concurrent jurisdiction.15 [124] b. Persons Entitled to Review; Parties. A person not injuriously affected by the decision cannot appeal therefrom.16 The members of the court for the exercise of its original, perior court where it is based on the decision of an arbitration committee. Young v. Duncan, 218 Mass. 346, 106 NE 1. (2) "It is plain from §§ 7 and 10, Part III of the act as amended by St. 1912, c 571, §§ 12, 13, that the commission on arbitration shall make rulings of law and that such rulings of law shall be subject to review by the Industrial Accident Board, whose decisions in turn shall be subject to review by the court, and that after the entry of a decree in the Superior Court all proAceedings shall be the same as though rendered 'in a suit duly heard and determined by said court,' except that there shall be no appeal upon findings of fact." Pigeon's Case, 216 Mass. 51, 54, 102 NE 932, AnnCas 1915A 737. (3) "Although a proceed-pation in such fund can apply to this ing under the workmen's compensation act is not an equity cause, the practice, speaking broadly, follows that prevailing in equity and not that in law." Pigeon's Case, supra. Το same effect In re Gould, 215 Mass. 480, 102 NE 693, AnnCas1914D 372. (4) Questions of law arising under St. (1911) c 751 can be brought up to the supreme judicial court only by appeal, and exceptions are not allowed. In re Cripp, 216 Mass. 586, 104 NE 565, AnnCas1915B 828; In re McNicol, 215 Mass. 497, 102 NE 697, LRA1916A 306; In re Gould, supra. (5) "Workmen's compensation act as amended by St. 1912, c 571, § 14, 'that there shall be no appeal from a decree based upon an order or decision of the board which has not been presented to the court within ten days after the notice of the filing thereof by the board.' This does not mean that the case must be actually brought to the attention of a judge of the Superior Court within that time. It is a compliance with the statute if the required papers are presented to the court in the sense of being filed as a part of its records. The case is here rightly." re McPhee, 222 Mass. 1, 2, 109 NE 633. In 8. See statutory provisions; and Naud v. King Sewing Mach. Co., 95 Misc. 676, 159 NYS 910. 9. See supra § 22. Service 10. Poccardi V. Public Commn., 75 W. Va. 542, 84 SE 242, LRA1916A 299; De Constantin V. Public Service Commn., 75 W. Va. 32, 83 SE 88, LRA1916A 329. [a] Discussion of rule.-In West Virginia the court, in holding that the jurisdiction to review acts of the public service commission respecting the administration of the workmen's compensation fund conferred on the supreme court of appeals by the acts of 1913, § 43 c 10 (Code [1913] c 15 p $ 699), is original, not appellate said: "What the statute (section 43 of chapter 10 of the Acts of 1913 [Code 1913, c. 15p (sec. 699)]) denominates an appeal must, if possible, be regarded as a right given to a claimant to participation in the fund in question, to apply to this which he complains, or incurrence of the 11. Great Western Power Co. v. "The industrial board has no jurisdiction to apply the act to persons or corporations who are not subject to its provisions nor to an accident not within the provisions of the act. If it did so it would not be 'acting within its powers,' and it would seem essential that there must be some remedy for a review by some proper court of the question whether the board acted within its powers. No valid provision having been made in the act for such review, it does not follow that none can be had. We have no doubt the circuit courts have jurisdiction to issue the common law writ of certiorari to review the decisions of the board for the purpose of determining whether it had jurisdiction or whether it had exceeded its powers and acted illegally." Courter V. Simpson Constr. Co., supra. "When the board has power to act only upon given facts, and there is no evidence whatever to show the existence of those facts, a finding that they do exist cannot, it is claimed, foreclose inquiry by a court under a writ of certiorari. This position is, indeed, not questioned by the respondents, who concede that where the evidence is all one way, and the finding is to the contrary, the question becomes one of law, reviewable in a proceeding like the one before us. And, in thus agreeing, the parties are supported by the general current of authority, including the decisions of this court on the general scope of the writ of certiorari, and, as well, a number of rulings of other courts on cases arising under statutes similar to the Roseberry Act." Great Western Power Co. v. Pillsbury, supra. [a] For example.-"The question whether the accident was caused by the 'willful misconduct of the employee' is one that goes to the jurisdiction of the board, and is therefore open to inquiry on certiorari." Great Western Power Co. v. Pillsbury, 170 Cal. 180, 186, 149 P 35. 12. Garratt-Callahan Co. v. Industrial Acc. Commn., 171 Cal. 334, 153 P 239. [a] Illustration.-An award to an injured employee by the industrial accident commission, which award included an order to defendant employer to pay to those entitled the reasonable value of medical services rendered the employee, such claims to be approved by the commission before payment, cannot be made the subject of review before such approval by the commission, since in that respect the award is not a final, enforceable judgment. Garratt-Callahan Co. v. Industrial Acc. Commn., 171 Cal. 334, 153 P 239. 13. Cardoza v. Pillsbury, 169 Cal. 106, 145 P 1015. [a] Error in the taking of testimony is not a ground under the California act of 1913 § 77. Frankfort Gen. Ins. Co. v. Pillsbury, (Cal.) 159 P 150. 14. Brenner v. Brenner, 127 Md. 189, 96 A 287. 15. Brenner v. Brenner, 127 Md. 189, 96 A 287. 16. In re Janes, 217 Mass. 192, 104 NE 556; Crockett v. International R. |