commission individually are not proper parties defendant.17 The person or persons interested in maintaining the award should be joined.18 [125] c. Presentation of Questions for Review. In the absence of a provision in the act or in the rules of court requiring the filing of exceptions to the findings of fact or the conclusions of law of the commission they are not necessary; 19 but an appeal brings up the whole case to be heard on the record of the commission and the briefs and arguments submitted.20 In order that questions as to the admissibility of evidence may be considered on appeal, objection must be made before the board.21 A party by having taken an inconsistent position on the hearing before the board may be precluded from urging an objection in the proceeding for review.2 So where the employer takes part in the proceedings before the commission, without claiming exemption from the law, and has filed a notice accepting the act, he cannot successfully claim on appeal that the commission had no ground for finding that the parties were subject to the act.2 Likewise an employer cannot, on appeal, for the first time assert that the employment was but casual.24 22 Preservation of evidence. To permit a determi Co., 170 App. Div. 122, 155 NYS 692. [a] Illustrations.-(1). The employer cannot appeal to the appellate division of the supreme court under the terms of the New York law, where he is insured in the state insurance fund. Crockett v. International R. Co., 170 App. Div. 122, 155 NYS 692. (2) The insurer cannot litigate by appeal the proportions of the division of a payment among those claiming to be dependents on a deceased employee, when the dependents are satisfied and do not appeal, and when the insurer cannot by any possibility be affected in its pecuniary responsibility by any modification permitted by law of the order for payment. In re Janes, 217 Mass. 192, 104 NE 556. 17. Carstens v. Pillsbury, (Cal.) 158 P 218. 18. Carstens v. Pillsbury, 158 P 218. (Cal.) 19. Kenny v. Union R. Co., 166 App. Div. 497, 152 NYS 117. 20. Kenny v. Union R. Co., 166 App. Div. 497, 152 NYS 117. 21. In re Duprey, 219 Mass. 189, 106 NE 686; Pigeon's Case, 216 Mass. 51, 102 NE 932, AnnCas1915A 737. 22. Vereeke v. Grand Rapids, 184 Mich. 474, 151 NW 723. [a] Illustration.-Where a claimant against a city for the death of her son, an employee, and the city stipulated that arbitration provided for in the workmen's compensation law (Pub. Acts [1912] No. 10) should be waived and the matter submitted to the industrial accident board, and, on the divorced husband of the claimant appearing and denying her right to an order for support growing out of the death of her son, claimant and counsel proceeded before the board on the theory that a hearing before it should be had, without raising the question that the parties were bound by the stipulation, the claimant, on certiorari to review the compensation awarded her by the board after a hearing, could not urge that the hearing was in violation of the stipulation. Vereeke v. Grand Rapids, 184 Mich. 474, 151 NW 723. 23. Milwaukee Western Fuel Co. v. State Industrial Commn., 159 Wis. 635, 150 NW 998. 24. Victor Chemical Works V. State Industrial Bd., 274 Ill. 11, 113 NE 173. 25. Kenney's Case, 222 Mass. 401, 111 NE 47; In re Fisher, 220 Mass. 581, 108 NE 361; In re Sponatski, 220 Mass. 526, 108 NE 466, LRA1916A 333; Brightman's Case, 220 Mass, 17, 107 NE 527, LRA1916A 321; In re Herrick, 217 Mass. 111, 104 NE 432: nation of the sufficiency of the evidence as a matter of law to support the finding, it must all be preserved.25 On appeal from a decree entered on the decision of the accident board it will be assumed that the committee of arbitration reported all material evidence as required by statute;26 but where the accident board also heard the evidence, there must be a statement that all the evidence is in the record.27 A claimant cannot contend that a finding is supported by evidence not in the record, where there is nothing to suggest that the commission had any other proofs before it than those appearing,28 especially where he has signed a stipulation that the record on appeal contains all of the evidence.29 [126] d. Trial De Novo. The statutes do not ordinarily permit a trial de novo on review,30 one of the reasons advanced being that the commission is not a court, and that to authorize the conferring of appellate jurisdiction of its findings and awards. it must be so regarded.31 Some of the acts, however, secure to the party appealing the right to a jury trial on any question of fact involved,3 32 and additional evidence may be introduced.33 Others allow a jury trial to the claimant on denial of his right to participate in the insurance fund on any In re Bentley, 217 Mass. 79, 104 NE, ministrative. He determines facts 432. 26. Brightman's Case, 220 Mass. 17, 107 NË 527, LRA1916A 321. 27. In re Stickley, 219 Mass. 513, 514, 107 NE 350. "The report of the committee of arbitration states that 'the material testimony was substantially as follows;' then follows the testimony of certain witnesses, including that of the employee; if this statement can be construed as a statement that all the evidence is reported, still, there is nothing in the record to show that all the evidence submitted to the Industrial Accident Board and upon which it made its decision is reported to this court." In re Stickley, supra. ex [a] Presumption.-Although cerpts from the transcript of the evidence showed that the deceased was a casual employee, it cannot on appeal be presumed, the industrial accident board having found that the employment was not casual, that the excerpts were the only evidence on that point. In re King, 220 Mass. 290, 107 NE 959. 28. Tirre v. Bush Terminal Co., 172 App. Div. 386, 158 NYS 883. 29. Tirre v. Bush Terminal Co., 172 App. Div. 386, 158 NYS 883. 89 30. Hotel Bond Co.'s App., Conn. 143, 93 A 245; International Harvester Co. v. Industrial Commn., 157 Wis. 167, 147 NW 53, AnnCas 1916B 330. [a] Reason for rule.-"It may well be that the case tried before the commissioner may be a very different one from that tried before the court, if on appeal the case is retried on the facts. Evidence which may have satisfied the commissioner may not, under the rules of evidence, be admitted in the Superior Court; so that the conclusion of the commissioner may be reached upon an entirely different basis of fact from that the Superior Court could take. The procedure of each tribunal is greatly variant. We may not believe that the General Assembly intended one form of trial and one set of facts before the commissioner, and quite a different set of facts and mode of trial before the Superior Court; for such course would impair the purposes and nullify the benefits of the Act." Hotel Bond Co.'s App., 89 Conn. 143, 149, 93 A 245. 31. Hotel Bond Co.'s App., 89 Conn. 143, 93 A 245. [a] Duties are administrative."Some of the duties devolving upon the commissioner are quasi judicial, and some are wholly executive or ad upon the classes of evidence allowed, and applies the law to the facts found, and renders judgment which affects the property rights of litigants before him and which may be enforced by execution issued as of course out of the Superior Court. He may hear the applicant at his residence. He proceeds to hearing without pleadings and without regard to the ordinary rules of evidence. He may make his inquiry through oral or written and printed records best calculated to ascertain the substantial rights of the parties. He receives, files and transmits all notices required by the Act. He supervises agreements made between the employer and his workmen. He is the adviser of all and the umpire between the disputants. Such a tribunal clearly is not a court.' Hotel Bond Co.'s App., 89 Conn. 143, 148, 93 A 245. 32. Frazier v. Lees, 127 Md. 572, 96 A 764. [a] In Illinois. (1) Since the manner of trial in the circuit court is prescribed or directed by the workmen's compensation act, the provisions of the Practice Act are applicable. Carlson v. Avery Co., 196 Ill. A. 262. (2) Special verdicts are authorized. Carlson v. Avery Co., supra. (3) A special verdict in order to sustain an award must find the essential facts as distinguished from the evidence. Carlson v. Avery Co., supra. (4) Where the difference between the claimant's earnings before and after the accident is in issue, there must be a finding of the claimant's earnings at such times. Carlson v. Avery Co., supra. (5) A failure to find the specific earnings of the claimant before and after the accident is not excused by the fact that there is a stipulation in the record as to the earnings. Carlson v. Avery Co., supra. 33. American Ice Co. v. Fitzhugh, 128 Md. 382, 97 A 999; Frazier v. Lees, 127 Md. 572, 96 A 764. [a] Reason for rule.-"The Legislature has made the decision of the Commission prima facie correct, but has provided that it may be attacked upon the grounds stated in the Act, and where the proof is insufficient to establish the incorrectness of the decision it may be reversed or modified.' Upon any issue of fact involved the appellant is given the' valuable right of trial by jury, and a full opportunity to be heard. It can not be a reasonable supposition that the Legislature designed the language used in conferring these rights ground going to the basis of his claim,34 or make the granting of a jury trial partially discretionary with the court.35 Further, where it is provided that an award may be set aside as procured by fraud, it would seem that evidence may be taken on this issue.3 Where a jury trial is had, a verdict finding simply for the petitioner and that he is entitled to recover compensation is sufficient.37 Where, under the statutes, the decision of the commission is prima facie correct and the burden of proof is on 36 should have an interpretation which would in many cases render exceedingly doubtful of any practical utility the rights intended to be secured by the Act. To deny to one attacking the decision upon appeal the right to introduce any proper oral evidence would so clog and hamper the exercise of his rights under the Act as to render them of little value. We can not suppose the Legislature had any such design." Frazier V. Leas, 127 Md. 572, 577, 96 A 764. last [b] Applications of rule.-(1) An employer and an insurer, appealing to the superior court of Baltimore city from a decision of the industrial accident commission continuing the employee's compensation, had the right to introduce additional testimony to show that, after a certain date, when compensation was paid to the claimant, he was not suffering from the effects of his accident, but from those of a disease. Frazier v. Leas, 127 Md. 572, 96 A 764. (2) The court may consider evidence as to the careful habits of the deceased, where there was no eyewitness to the accident, although there is some evidence as to how it happened. Erickson V. American Well Works, 196 Ill. A. 346. [c] The burden is on the claimant to introduce evidence showing his loss of earning capacity. Carlson v. Avery Co., 196 Ill. A. 262. 34. State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694. 35. Sinnes v. Daggett, 80 Wash. 673, 142 P 5. [a] Question of law. The question whether appellant's disability was a permanent total disability or a permanent partial disability was, under the statute, one for the court, and he was not entitled to a jury trial thereon. Sinnes v. Daggett, 80 Wash. 673, 142 P 5. [b] Rescission of order. On appeal from an award by the industrial insurance department, where the presiding judge at the first hearing made an interlocutory order awarding appellant a jury trial, it was not error for the judge presiding at the final hearing to rescind that order, such orders being subject to change and correction. Sinnes v. Daggett, 80 Wash. 673, 142 P 5. 36. International Harvester Co. v. Industrial Commn., 157 Wis. 167, 147 NW 53, AnnCas1916B 330. 37. Dragovich v. Iroquois Iron Co., 269 III. 478, 109 NE 999. 38. American Ice Co. v. Fitzhugh, 128 Md. 382, 97 A 999. V. V. Div. 450, 155 NYS 1; Goldstein Centre Iron Works, 167 App. Div. 526, 153 NYS 224; Cunningham Buffalo Copper, etc., Rolling Mills, 155 NYS 797. 39. Kennerson V. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA1916A 436; Hotel Bond Co.'s App., 89 Conn. 143, 93 A 245; Armour v. Industrial Bd., 273 Ill. 590, 113 NE 138; Kenney's Case, 222 Mass. 401, 111 NE 47; In re Janes, 217 Mass. 192, 104 NE 556; In re Herrick, 217 Mass. 111, 104 NE 432; In re Bentley, 217 Mass. 79, 104 NE 432; In re Donovan, 217 Mass. 76, 104 NE 431, AnnCas1915C 778; In re Diaz, 217 Mass. 36, 104 NE 384; Ramlow Moon Lake Ice Co., (Mich.) 158 NW 1027; Dale v. Saunders, 218 N. Y. 59. 112 NE 571 [aff 171 App. Div. 528. 157 NYS 1062]; Rhyner v. Hueber Bldg. Co., 171 App. Div. 56, 58, 156 NYS 903; Kingsley v. Donovan, 169 App. Div. 828, 155 NYS 801; Plass v. Central New England R. Co., 169 App. Div. 826, 155 NYS 854; Carroll v. Knickerbocker Ice Co., 169 App. V. "If the facts proven are capable as a matter of law of sustaining the inferences of fact drawn from_them by the Industrial Accident Board, its findings are conclusive, in the absence of fraud, and the appellate court is not at liberty to interfere with them." Papinaw V. Grand Trunk R. Co., (Mich.) 155 NW 545, 547. "It was 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. A clearer conception on the part of attorneys of the limited power of the court over awards and of the conclusiveness of the facts found by the Commission would, we think, result in fewer appeals." Milwaukee V. Industrial Commn., 160 Wis. 238, 244, 151 NW 247. "The Commission is the sole judge and the 'final' judge of the facts. and this court is not only forbidden to trespass upon the jurisdiction of the Commission in this field, but, by section 20 of the act, it is circumscribed, even, in its review of questions of law. It was the purpose of the Legislature to create a tribunal to do rough justice - - speedy, summary, informal, untechnical. With this scheme of the Legislature we must not interfere, for, if we trench in the slightest degree upon the prerogatives of the Commission, one encroachment will breed another, until finally simplicity will give way to complexity, and informality to technicality." Rhyner v. Hueber Bldg. Co., supra. Review of determination by court see infra § 144. V. 40. Frankfort Gen. Ins. Co. Pillsbury, (Cal.) 159 P 150; Chicago, etc., R. Co. v. State Industrial Bd., 274 Ill. 336, 113 NE 629; Victor Chemical Works v. Industrial Bd., 274 III. 11, 113 NE 173; In re McManaman, (Mass.) 113 NE 287; In re Fierro, 223 Mass. 378, 111 NE 957; In re Crowley, 223 Mass. 288, 111 NE 786; Newman's Case, 222 Mass. 563. 111 NE 359. LRA1916C 1145; Madden's Case, 222 Mass. 487, 111 ΝΕ 379, LRA1916D 1000; Savage's Case, 222 Mass. 205, 110 NE 283; Septimo's Case, 219 Mass. 430, 107 NE 63; Meley's Case, 219 Mass. 136, 106 NE 559; Burns' Case, 218 Mass. 8, 105 NE 601, AnnCas1916A 787; In re Johnson, 217 Mass. 388, 104 NE 735; In re Bentley. 217 Mass. 79, 104 NE 432; In re Donovan, 217 Mass. 76, 104 NE 431, AnnCas1915C 778; In re Diaz, 217 Mass. 36, 104 NE 384; Bell v. Hayes-Ionia Co., (Mich.) 158 NW 179; Kennelly v. Stearns Salt, etc., Co., (Mich.) 157 NW 378; La Veck v. Parke, etc., Co., (Mich.) 157 NW 72; Linsteadt v Louis Sands Salt, etc., Co., (Mich.) 157 NW 64; Deem v. Kalamazoo Paper Co., (Mich.) 155 NW 584: Spooner v. Detroit Saturday Night Co., 187 Mich. 125, 153 NW 657, LRA1916A 17; Grove Michigan Paper Co., 184 Mich. 449, 151 NW 554; Redfield v. Michigan Workmen's Compensation Mut. Ins. Co.. 183 Mich. 633. 150 NW 362; Hills v. Blair, 182 Mich. 20, 148 NW V. 243; Reck V. Whittlesberger, 181 Mich. 463, 148 NW 247, AnnČas1916C 771; Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 NW 665, LRA 1916A 22, AnnCas1916A 386; Tirre v. Bush Terminal Co., 172 App. Div. 386, 158 NYS 883; Rhyner v. Hueber Bldg. Co., 171 App. Div. 56, 156 NYS 903; Fairchild v. Pennsylvania R. Co., 170 App. Div. 135, 155 NYS 751: Hendricks v. Seeman, 170 App. Div. 133, 155 NYS 638; Powley v. Vivian, 154 NYS 426. [a] Ultimate facts.-Under St. (1913) p 318 § 84, providing that, on review of the proceedings before the state industrial commission to determine the compensation for injuries to a workman it can be determined whether the findings of fact support the order, decision, or award under review, and that the commission's findings of fact shall be conclusive and final and shall include ultimate facts, and findings conclusions of the commission, the commission's findings of fact cannot be reviewed if supported by any evidence, and its conclusions of fact which are the conclusions referred to, drawn from the evidentiary facts, are also final. Smith v. Industrial Acc. Commn., 20 Cal. A. 560, 147 P 600. and [b] Illustrations of findings held conclusive.-(1) That an employee's death was proximately caused by his injury. Burns' Case, 218 Mass. 8. 105 NE 601, AnnCas1916A 787, (2) That the mother of deceased was dependent on him. Rhyner v. Hueber Bldg. Co., 171 App. Div. 56, 156 NYS 903. (3) Absence of serious and willful misconduct of employer. Burns' Case, 218 Mass. 8, 105 NE 601, AnnCas1916A 787. (4) Total incapacity. Bruce v. Taylor, (Mich.) 158 NW 153. (5) Percentage of disability. Frankfort Gen. Ins. Co. v. Pillsbury, (Cal.) 159 P 150. (6) Permanent incapacity for use of hand. In re Lemieux, 223 Mass. 346, 111 NE 782. (7) That the employee received lead poisoning or plumbism as a personal injury. Doherty's Case, 222 Mass. 98, 109 NE 887. (8) That incapacity existing at the time of hearing resulted from the accident. Southwestern Surety Ins. Co. v. Pillsbury, (Cal.) 158 P 762. (9) That the accident arose out of and in course of employment. Munn v. Industrial Bd., 274 Ill. 70, 113 NE 110. (10) As to whether injury arose out of and in course of employment. Bischoff v. American Car, etc., Co., (Mich.) 157 NW 34. (11) Status of person claiming compensation as employee. Western Indemn. Co. v. Pillsbury, (Cal.) 159 P 721. (12) As to person in whose employment employee was at time of injury. Dale V. Saunders, 218 N. Y. 59, 112 NE 571 [aff 171 App. Div. 528, 157 NYS 1062]. (13) That employer was not prejudiced by failure to give written notice of injury. Marinaccio v. Flinn-O'Rourke Co., 172 App. Div. 378, 158 NYS 715. (14) That the injury was reported to the employer's superintendent a few days after it occurred. Shafer v. Parke, etc., Co., (Mich.) 159 NW 304. (15) Extent to which employee used intoxicating liquors. Ramlow v. Moon Lake Ice Co., (Mich.) 158 NW 1027. (16) That employee was intoxicated, causing injury but not guilty of willful misconduct. Nekoosa-Ed 43 dence is final and conclusive," although the court might have come to a different conclusion thereon had it been called on to decide the question in the first instance.42 So the findings are conclusive if there is any substantial basis for them in the evidence,13 or, as the rule is sometimes stated, if in any reasonable view of the evidence it will support them either directly or by fair inference.** In this respect an analogy is maintained to a finding of fact by a court or a jury in an action at law." The evidence may be considered for the purpose of supplementing or explaining the findings of fact, but not to contradict or vary them." The question of whether there is an entire absence of evidence to sustain the findings of the board or commission is, wards Paper Co. v. Industrial 41. Western Metal Supply Co. v. V. "There is evidence in which supports the findings of fact made by the Commission, hence it cannot be said that the board acted without or in excess of its powers, even though this court, if trying the fact, might 'reach a different clusion. If there was substantial, credible evidence supporting the findings of the Commission, the courts cannot interfere." Milwaukee Coke, etc., Co. V. Industrial Commn., supra. con 274 43. Munn V. Industrial Bd., Ill. 70, 113 NE 110; Hoenig v. Industrial Commn., 159 Wis. 646, 150 NW 996; Oldenberg v. Industrial Commn., 159 Wis. 333, 150 NW 444. 44. In re Sanderson, (Mass.) 113 NE 355; Lesh v. Illinois Steel Co., 163 Wis. 124, 157 NW 539; Milwaukee First Nat. Bank V. Industrial Commn., 161 Wis. 526, 154 NW 847; Eagle Chemical Co. v. Nowak, 167 Wis. 446, 154 NW 636; Oldenberg v. Industrial Commn., 159 Wis. 333, 150 NW 444. 45. In re Sanderson, (Mass.) 113 NE 355; Savage's Case, 222 Mass. 205, 110 NE 283; In re Diaz, 217 Mass. 36, 104 NE 384; Papinaw v. Grand Trunk R. Co., (Mich.) 155 NW 545. "The finding [of the Industrial Accident Board] stands upon the same footing as the finding of a judge or a verdict of a jury. It is not to be set aside if there is any evidence upon which it can rest." Pigeon's Case, 216 Mass. 51, 52, 102 NE 932, AnnCas1915A 737. To same -effect McPhee's Case, 222 Mass. 1, 109 NE 633. 46. Gleisner v. Gross, 170 App. Div. 37, 155 NYS 946; Rheinwald v. Builders' Brick, etc., Co., 168 App. Div. 425, 153 NYS 598. 47. Cal.-Western Grain, etc., Co. v. Pillsbury, 159 P 423; Employers' Assur. Corp. v Industrial Acc. Commn., 170 Cal. 800, 151 P 423; 46 Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P 35. Conn.-Hotel Bond Co.'s App., 89 Conn. 143, 93 A 245. Ill.-Victor Chemical Works V. Industrial Bd., 274 Ill. 11, 113 NE 173. Mass.-Kenney's Case, 222 Mass. 401, 111 NE 47; Sponatski's Case, 220 Mass. 526, 108 NE 466, LRA 1916A 333; Buckley's Case, 218 Mass. 354, 105 NE 979, AnnCas1916B 474 and note; Burns' Case, 218 Mass. 8, 105 NE 601, AnnCas1916A 787; In re Herrick, 217 Mass. 111, 104 NE 432. Mich.-Beckwith v. Spooner, 183 Mich. 323, 149 NW 971. N. Y.-Carroll v. Knickerbocker Ice Co, 218 N. Y. 435, 113 NE 507 [rev 169 App Div. 450, 155 NYS 1]; Heitz v. Ruppert, 218 N. Y. 148, 112 NE 750; Tirre v. Bush Terminal Co., 172 App. Div. 386, 158 NYS 883; Collins Gas Brooklyn Union Co., 171 App. Div. 381, 156 NYS 957. Wis.-Milwaukee Western V. Fuel Co. v. Industrial Commn., 159 Wis. 633, 150 NW 998; International Harvester Co. v. Industrial Commn., 157 Wis. 167, 147 NW 53, AnnCas1916B 330. "It is thoroughly settled that the claim that a finding of a court or jury is without support in the evidence presents a question of law, rather than of fact." 51 competent and legal, as tested by the usual rules for producing evidence in any legal proceeding, to sustain their finding, otherwise they could make an award on other incompetent evidence or on no evidence at all, and this was not contemplated by the law. Such evidence must also be preserved and incorporated into the record of the proceedings, as provided in the act and as above pointed out. If books and records are examined, the contents relied upon must be competent and properly authenticated, and must be set out in the record of the proceedings. While a view or inspection of premises might be helpful to the arbitrators in making a decision, there should be evidence of the fact unless all parties agreed that the arbitrators might decide a claim before them from such view or inspection alone. In short, there must be some competent evidence to sustain the decision of the arbitrators and of the Industrial Board, and, if founded on hearsay or other improper or insufficient evidence, it is the duty of the circuit court on certiorari, to remand the proceedings to the Industrial Board for Victor Chemproper proceedings." ical Works v. Industrial Bd., 274 Ill. 11, 113 NE 173, 178. [a] Jurisdictional facts.-Under workmen's compensation act, commonly known the Boynton Act, providing a system for the compensation of accidents or injuries to employees, and establishing an industrial accident commission, and providing that its findings on questions of fact, including ultimat facts, and its conclusions shall be conclusive and not subject to review, and that its orders and awards sha!! be reviewable by the supreme court or by the district court of appeals by certiorari to the extent of determining whether it acted without or in excess of its powers, whether its order or award was procured by fraud or was unreasonable, and whether its findings of fact support the order or award under review, the power of review extends to the inquiry whether a finding of a jurisdictional fact, such as whether the injury was caused by accident to an employee within the course of his employment, is without the support the Great West ern Power Co. v. Pillsbury, 170 Cal. 180, 185, 149 P 35. "All evidence which tends to render probable or improbable the existence of the facts which are the subject of inquiry is relevant, and conversely all relevant facts have this tendency. In order to support an argument to the effect that an ultimate conclusion of fact has no evidence to support it there must be shown an absence of all evidence or an absence of any such relevant evidence." Oldenberg V. Industrial Commn., 159 Wis. 333, 335, 150 NW 444. "The employer and the insurance carrier are entitled to a hearing. The hearing is of a summary character, and the Commission is not bound by the ordinary rules of evidence and practice. Nevertheless, its determination as to the facts is a quasi judicial determination, and must rest upon the facts presented to it, the undisputed facts of the case and the reasonable inferences which may be drawn from them. The Commission cannot act arbitrarily on the information it receives or in direct violation of the conceded facts. Its duty, therefore, is to base its determination upon the undisputed facts of the case and the reasonable inferences to be drawn from the general situation. When its findings are without evidence and in direct conflict with the undisputed facts, and all reasonable inferences which may be drawn from them, its determination may be reversed as error of law." Gardner V. Horseheads Constr. Co., 171 App. Div. 66, 69, 156 NYS 899. "It requires no argument to show that, when the arbitrators hear evidence, there must be evidence that is of as any substantial evidence, such inquiry presenting a question of law. Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398. 48. Foley v. Detroit United R. Co., (Mich.) 157 NW 45. 49. Zappala V. Industrial Ins. Commn., 82 Wash. 314, 144 P 54, LRA1916A 295. 50. Zappala V. Industrial Ins. Commn., 82 Wash. 314, 144 P 54, LRA1916A 295. 51. See statutory provisions; and Donlon V. State Industrial Acc. Commn., (Cal.) 159 P 715; Hotel Bond Co.'s App., 89 Conn. 143, 93 A 245; Bell v. Hayes-Ionia Co., (Mich.) 158 NW 179. [a] Illustration.-On certiorari to review an order of the industrial accident board affirming an award of compensation under the work 56 the application of the law to the facts,52 rulings on [130] f. Harmless Error. inthe men's compensation act to an jured employee, where all of facts relative to the claimant's employment are conceded, or not disputed, the finding of the board that the claimant was not a farm laborer may be reviewed. Shafer v. Parke, etc., Co., (Mich.) 159 NW 304. 52. Donlon V. State Industrial Acc. Commn., (Cal.) 159 P 715; Kenney's Case, 222 Mass. 401, 111 NE 47; Rheinwald V. Builders' Brick, etc., Co., 168 App. Div. 425, 153 NYS 598; Zappala V. Industrial Ins. Commn, 82 Wash. 314, 144 P LRA1916A 295. 54 of [a] Illustrations.- Question relationship of employer and employee is jurisdictional and will be reviewed. Donlon V. State Industrial Acc. Commn., (Cal.) 159 P 715. 53. Reck v. Whittlesberger, 181 Mich. 463, 148 NW 247, AnnCas1916C 771. 54. Hotel Bond Co.'s App., 89 Conn. 143, 93 A 245; Gardner v. Horseheads Constr. Co., 171 App. Div. 66, 156 NYS 899. 55. Hotel Bond Co.'s App., 89 Conn. 143, 93 A 245; Bell v. HayesIonia Co., (Mich.) 158 NW 179; Gardner v. Horseheads Constr. Co., 171 App. Div. 66, 156 NYS 899. 56. Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398. 57. Milwaukee V. Industrial Commn., 160 Wis. 238, 151 NW 247. 58. Hartz V. Hartford Faience Co., (Conn.) 97 A 1020. 59. Smith V. Industrial Acc. Comm., 26 Cal. A. 560, 147 P 600; De Voe v. New York State R. Co., 169 App. Div. 472, 155 NYS 12. 60. Great Western Power Co. v. Pillsbury, 170 Cal. 180, 186, 149 P 35 (where the court said: The provision of the Roseberry Act making findings of fact by the board conclusive, should, we think, be taken to include findings of jurisdictional facts as well as others. But a review by a court which shall determine whether the board has acted in excess of its powers is expressly provided for, and it should not be held that a review can be avoided by a mere declaration, unsupported by any evidence, that the jurisdictional facts exist. Such declaration is to be regarded, not as a finding of fact, but as an assumption of jurisdiction, based upon a false or erroneous application of the law"). 61. Sinnes v. Daggett, 80 Wash. 673, 142 P 5. [a] Application of rule.-An award of twelve hundred dollars in favor of a servant who suffered a permanent partial disability in the loss of several fingers cannot, on appeal by the servant, be set aside as arbitrary, as the maximum amount authorized by statute for 60 cisions of an administrative board the technical rules of law applicable to the reviewing of regularly constituted trial courts need not be followed,62 and a finding of the board will not be reversed for error in the admission 63 or exclusion of evidence, unless the substantial rights of the parties appear to have been affected, or if there is competent evidence on which the finding may be based." 64 65 In a proceeding before the industrial accident board by an alleged dependent for compensation for the death of an employee, the insurer's requested rulings that on the report of the board of arbitration one claimant was not entitled to compensation, and that she was not the next of kin or a member of the family of the deceased, became immaterial, where her claim was disallowed by the industrial accident board.66 [131] g. Disposition of Cause. On review of an award the court may be authorized to make such orders in respect thereto as justice may require, and it may remand the case to the commis 67 In reviewing de- V. [a] Application of rule.-Where an award on which judgment was entered may be interpreted as the claimant avers that it should be, and there is no objection made to the sum and no error of law requiring reversal, it will not be disturbed. Brown V. George A. Fuller Co., (Mich.) 159 NW 376. 63. Von Ette's Case, 223 Mass. 56, 111 NE 696, LRA1916D 641. "As bills of exceptions do not lie under the workmen's compensation act and the only way to bring questions of law to this court is by appeal, it follows that the general equity rule as to consideration of questions of evidence raised at a hearing before the chancellor ought to be followed. Such questions reasonably presented upon the record will be considered, but a decree will not be reversed for error in this respect unless the substantial rights of the parties appear to have been affected." Pigeon's Case, 216 Mass. 51, 55, 102 NE 932, AnnCas1915A 737. 64. Bell V. Hayes-Ionia Co., (Mich.) 158 NW 179. 65. Fitzgerald V. Lozier Motor Co., 187 Mich. 660, 154 NW 67; Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 113 NE 507 [rev 169 App. Div. 450, 155 NYS 1]; Milwaukee First Nat. Bank V. Industrial Commn., 161 Wis. 526, 154 NW 847. "We do not think, however, that under the language used in our workmen's compensation act the decisions of its administrative board must be in all cases reversed under the rule of presumptive prejudice, because of error in the admission of incompetent testimony, when, in the absence of fraud, there appears in the record a legal basis for its findings, which are made 'conclusive' by statute when said board acts within the scope of its authority." Reck v. Whittlesberger, 181 Mich. 463, 470, 148 NW 247, AnnCas1916C 771. 66. Kelley's Case, 222 Mass. 538, 111 NE 395. 67. In re Murphy, (Mass.) 113 NE 283; Andrejwski v. Wolverine Coal Co., 182 Mich. 298, 148 NW 684. [a] Illustrations.-(1) Where the commission has adopted an erroneous method of computing compensation, but the basis for a correct award is in the record, the court in reversing the decision of the commission may enter a proper order therefor. Andrejwski V. Wolverine Coal Co., 182 Mich. 298, 148 NW 684. (2) Under the workmen's compensa tion act, where the mother, since deceased, of an employee killed in service was his only next of kin at the time of the injury, when by the act the persons dependent are to be ascertained, the case will not be sent back that motion may be made to the industrial accident board under the supervisory power given it by the act (St. [1911] c 751 pt 3 § 12, amended by St. [1914] c 708 11) for an award to some one other than the deceased mother, as in exercising such supervisory power the board is limited in reviewing an order for a weekly payment to making one subject to the provisions of the act. In re Murphy, (Mass.) 113 NE 283. The [b] In Connecticut.-"The power of the superior court in the correction of a finding of the compensation commissioner is analogous to, and its method of correcting the finding similar to, the power and method of this court [the supreme court of errors] in correcting the finding of the superior court. finding of the superior court upon an appeal from an award of a commissioner, unless it corrects the finding of the commissioner, should merely in its finding make that finding a part of its record, without refinding the facts or making them the finding of facts for the purpose of appeal. If the trial court corrects the finding, it should indicate in its finding on appeal the corrections so made in the finding of the commissioner. If the trial court finds no harmful error in the appeal from the commissioner, it should dismiss the appeal. If it finds harmful error, either in a conclusion of law reached, or in a conclusion of fact reached, or in the finding of a material fact or the refusal to find a material fact, it should, if the award may be changed or modified without requiring a further hearing, sustain the appeal to this extent and direct the commissioner to make the award in accordance with its direction. If the award cannot be changed or modified in accordance with the conclusions of the trial court without further hearing upon the facts, it should sustain the appeal, and indicate in the judgment or its memorandum the grounds of its action." Thompson v. Twiss, 97 A 328, 330. [c] In Illinois.-"When a writ of certiorari is issued by the circuit court to review the proceedings of the State Industrial Board under the provisions of clause (f) of section 19 of the Workmen's Compensation act the court has the power to review all questions of law presented by the record of the industrial board, or a suit in chancery may be commenced by any party in interest sion for a further hearing.68. If the award is reversed because of error in making concurrent awards for total disability, it should be without prejudice to the further continuance of the case and the right of claimant to make further application in case of continuing disability. Where, on the insurer's peal, the cause was remitted to the industrial accident board on account of the diminution of the record, the board had no authority to make a new finding, but simply to complete the record according to the facts and return it, "diminution of the record" meaning incompleteness in the statement of the proceedings.70 [132] h. Further Review. After a court review of an award of a commission the right to a further appeal is of course strictly dependent on the provisions of the statute which in some instances allow such a proceeding." On such an appeal the judgment will not be reversed for matters not affecting the merits,72 such as informalities in the verdict.73 be compensated, although not a right which existed at common law, not being different in character from such rights, thus bringing the case within the terms of the statutes. Christensen v. R. W. Bartelmann Co., 273 Ill. 346, 112 NE 686. (5) An appeal lies to an appellate court from an order of a superior court under the workmen's compensation act (L. [1911] p 315), that an employer pay the administrator of a deceased employee three thousand five hundred dollars in equal weekly installments. Lavin v. Wells Bros. Co., 272 Ill. 609, 112 NW 271. (6) Prior to these decisions of the supreme court, in the first district the appellate court refused to take jurisdiction of an appeal from the superior court of Cook county from an order awarding compensation under the compensation act of 1911. Lavin v. Wells Bros. Co., 195 Ill. A. 108. (7) The same holding was made as to an appeal from the circuit court. Christensen V. Bartelmann Co., 195 Ill. A. 232. (8) In the second district the appellate court took jurisdiction of an appeal from the circuit court. Carlson v. Avery Co., 196 Ill. A. 262. should not go further than to annul to review the decision of the board | might be remedled, the decision 68. Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 P 24; Englebretson V. Industrial Acc. Commn., 170 Cal. 793, 151 P 421; In re Fierro, 223 Mass. 378, 111 NE 957; In re McLean, 223 Mass. 342, 111 NE 783; Carpenter_v. Detroit Forging Co., (Mich.) 157 NW 374; Finn v. Detroit, etc., City R. Co., (Mich.) 155 NW 721; Dearborn v. Peugeot Auto Import Co., 170 App. Div. 93, 155 NYS 769. [a] Illustrations.-(1) Where the commission has proceeded on an erroneous theory of а conclusive presumption of total dependency, the court on reversing the award will remand the case for such further hearing before the board as the parties may desire. Finn v. Detroit, etc., City R. Co., (Mich.) 155 NW 721. (2) Where the commission made an allowance according to the schedule of fixed liabilities for specified injuries, instead of under the general provision for partial incapacity, the case will be remanded for further hearing. Carpenter v. Detroit Forging Co., (Mich.) 157 NW 374. (3) Where a finding of mistake as an excuse for failing to file a claim for compensation is not supported by the evidence 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 on the question of "reasonable cause," other than mistake for not filing the claim. If such motion is made and granted, and on further hearing new facts are shown on this point, the case is to be considered anew on all the evidence introduced by all parties. In re McLean, 223 Mass. 342, 111 NE 783. (4) Where defendant relied before the commission on the ground that the proceeding could only be brought by a duly appointed legal representative of a deceased employee, the court although sustaining an adverse holding of the commission on this point may refer the matter to the commission to give the defendants opportunity to introduce evidence on the nature of the employment of the deceased. Dearborn v. Peugeot Auto Import Co., 170 App. Div. 93, 155 NYS 769. (5) Where an award of the industrial accident commission was overruled on certiorari because the evidence was insufficient to support it, but it appeared the defect 69. Fredenburg v. Empire United R. Co., 154 NYS 351. 70. Doherty's Case, 222 Mass. 98, 109 NE 887. [a] Harmless error.-"The board had no authority to make a new finding. Objection upon this point seasonably was taken by the insurer. But the new finding does not in our opinion differ in essential respects from the one made earlier. Although somewhat informal, the record as a whole enables us to ascertain what occurred. Although the proceeding was irregular, the substantial rights of the parties did not require the granting of the motion of the insurer to recommit the case to the board at that stage. The matters which supply the omissions of the former report, together with the substance of the original findings of the board, will be considered." Doherty's Case, 222 Mass. 98, 109 NE 887. 71. See statutory provisions; and cases infra this note. [a] In Illinois, (1) under the provisions of L. (1913), as amended by L. (1915) p. 400, the judgments, orders, and decrees of the circuit court on certiorari to the industrial board are reviewable by writ of error to the supreme court. (2) Under the provisions of the act of 1911 (L. [1911] p 321 § 10), it was held that error would lie to the supreme court from an award of compensation in the county court where the ground urged for the reversal was the unconstitutionality of the statute and the want of jurisdiction of the county court. Lauruszka v. Empire Mfg. Co., 271 Ill. 304, 111 NE 82. (3) An appeal from a judgment of the county court dismissing a proceeding under the workmen's compensation act on the ground that such act was unconstitutional was properly taken to the supreme court. Richardson V. Sears, 271 Ill. 325, 111 NE 85. (4) Under Appellate Court Act (Hurd Rev. St. [1913] c 37 § 25) § 8, and Practice Act § 91, providing that the appellate courts shall have jurisdiction of appeals from final judgments, orders, or decrees in any suit or proceeding at law or in chancery, an appeal lies to the appellate court from the judgment of a circuit court finding in claimant's favor on his appeal from a decision of the board of arbitration that he was not entitled to compensation under the workmen's compensation act (L. [1911] p 314), the right of an injured employee under the statutes to [b] In New York (1) an appeal may be taken from the appellate division of the supreme court to the court of appeals in all cases where such an appeal would lie from a decision of the appellate division, and is to be taken "in the same manner and subject to the same limitations as is [are] now provided in civil actions.' Harnett V. Thomas J. Steen Co., 216 N. Y. 101, 110 NE 170. (2) "We do not think that the legislative design was to extend the right of appeal or to permit appeals to this court in cases arising under the Workmen's Compensation Law where no right of appeal would exist if the employee had sought to enforce his rights in and action for damages for personal injuries resulting from negligence." Harnett v. Thomas J. Steen Co., 216 N. Y. 101, 104, 110 NE 170. (3) Where the application of the employer and the insurer to the appellate division for leave to apneal has been denied, and no permission to appeal has been granted by a judge of the court of appeals, the appeal must be dismissed. Harnett V. Thomas J. Steen Co., 216 N. Y. 101, 110 NE 170. (4) On appeal to the court of appeals from a nonunanimous affirmance of an award by the appellate division, the question of law arising from the absence of evidence may be considered. Heitz v. Ruppert, 218 N. Y. 148, 112 NE 750 [aff 155 NYS 1112 mem.]. 72. Armour v. Industrial Bd., 273 Ill. 590, 113 NE 138; Dragovich v. Iroquois Iron Co., 269 Ill. 478, 109 NE 999; Watters v. P. E. Kroehler Mfg. Co., 187 Ill. A. 548. [a] Illustration.-An order at the conclusion of the circuit court judgment that "this court retain jurisdiction for the purpose of enforcing this judgment," etc. Armour v. Industrial Bd., 273 111. 590, 113 NE 138. [b] Admission of evidence-Error, if any, in the admission of evidence in a trial to the court, of careful habits of deceased employee, objected to because there was evidence as to how the accident occurred, although there were no eyewitnesses, is of little importance. Erickson v. American Well Works, 196 Ill. A. 346. 73. Dragovich V. Iroquois Iron Co., 269 Ill. 478, 109 NE 999. |