So the action of the court on appeal from the industrial commission in submitting a question of law to the jury is harmless error where the jury decided correctly, and an objection to the finding of the court below should be specific.7 74 75 [§ 133] I. Determination by Court-1. In General. Several of the compensation acts provide that, when the right to and amount of compensation is not agreed on by the parties, it shall be determined by a designated court, usually an inferior court of general original jurisdiction. The proceeding is purely statutory, and is one unknown to the common law and in derogation of it; it is in a sense summary, but provision is made for a notice and hearing leading to a binding judgment.79 Under some of the statutes the action may be brought directly against the insurer.80 78 77 [134] 2. Limitations. A proceeding to obtain compensation is not included within the ordinary terms of general statutes of limitations;81 the acts, however, usually provide the period within which it shall be brought,82 but such a provision is not retroactive.83 74. Zappala V. Industrial Ins. Commn., 82 Wash. 314, 144 P 54, LRA 1916A 295. 75. Thompson v. Twiss, (Conn.) 97 A 328, 330 (where the court said: "The first ground, that 'the court erred in finding the facts set forth in part first of the finding,' is general, and not specifically addressed, as it should have been, to such paragraphs of the finding of the commissioner and made a part of the finding of the superior court as the respondents desired to have corrected"). 76. See statutory provisions; and Pierce v. Boyer-Van Kuran Lumber, etc., Co., 99 Nebr. 321, 156 NW 509, LRA1916D 970; Parro v. New York, etc., R. Co., 85 N. J. L. 155, 88 A 825. [a] New Jersey.-"The act in question [P. T. 1911 p. 134] having committed the determination of these questions to the Court of Common Pleas, the court for the trial of small causes is without jurisdiction to determine them, and the judgment before us must for that reason be vacated, with costs." Parro v. New York, etc., R. Co., 85 N. J. L. 155, 157, 88 A 825. [b] Rhode Island.-"The administration of the Workmen's Compensation Act in this state is given to the superior court. Regardless of the amount involved, original jurisdiction of petitions brought under the act is conferred upon the superior court." Jillson v. Ross, 94 A 717, 718. 77. Baur v. Essex County Ct. C. P., 88 N. J. L. 128, 95 A 627. "The proceeding is neither an action upon contract nor one of tort, but rather what the statute creating it makes it-that is, a proceeding to enforce a statutory duty or obligation, arising out of the relations of the parties, the basis of which is a contract, express or implied." Baur v. Essex County Ct. C. P., 88 N. J. L. 128, 131, 95 A 627. 78. State v. Hennepin County Dist. Ct., (Minn.) 158 NW 615; Hoey v. Superior Laundry Co., 85 N. J. L. 119, 88 A 823. 79. Hoey v. Superior Laundry Co., 85 N. J. L. 119, 88 A 823. "The proceeding is, as the act states, summary, but it provides for the institution of a suit by petition, notice to the defendant thereof, to which he may appear, answer, and have a trial, with a resulting judgment either adverse or favorable, which as to the controversy tried would be binding on both parties." Hoey v. Superior Laundry Co., 85 N. J. L. 119, 121, 88 A 823. [a] When the real parties in interest have pleaded and a reasonable Unless the stat [135] 3. Conditions Precedent. ute so provides,84 it is not necessary, as a condition precedent to an application to the court for compensation, that there first be a demand on the employer,85 or an effort to come to an agreement86 or to procure an arbitration.87 [136] 4. Hearing. By the usual provisions of the acts the judge of the court having jurisdiction of the application is empowered to fix the time and place of hearing,88 which may be independent of the regular terms of court,89 and the evidence is to be presented directly to the judge for his decision, without the intervention of a jury.90 .91 [§ 137] 5. Evidence-a. Burden of Proof. The person petitioning for relief under a workmen's compensation act has the burden of proving the essential facts necessary to establish a case; hence he must adduce evidence to show that the injury was the result of accident arising out of and in the course of the employment, within the requirement of the act.92 [138] b. Admissibility. Where the fact that claimant was injured in defendants' employ and is time has been given to all to prepare [b] In Quebec. The petition for V. 80. See statutory provisions; and State v. Hennepin County Dist. Ct., (Minn.) 158 NW 615 (holding that, where an employer insures his workman under the provisions of the act [Gen. St. (1913) § 8227], it is not necessary to the maintenance of an action against the insurer that the notice provided for in that section be filed in the office of the labor commissioner of the state before the accident which causes the injury occurs). 81. Baur v. Essex County Ct. C. P., 88 N. J. L. 128, 95 A 627. 82. See statutory provisions; and cases infra this note. [a] In New Jersey under the sup- 83. State v. General Acc. F., etc., [a] In New Jersey.-"The limita- [b] Deprivation of vested rights 84. See statutory provisions. 85. State v. St. Louis County Dist. Ct., 129 Minn. 423, 152 NW 838. 86. Ackerson v. National Zinc Co., 96 Kan. 781, 153 P 530. a "Nothing can be found in the entire statute which requires that such settlement be attempted by the plaintiff as a condition precedent to maintaining an action at law, and the courts cannot add a requirement either purposely or carelessly omitted by the Legislature. This question was decided in Ackerson v. National Zinc Co., 96 Kan. 781, 153 P 530, which decision is now approved and followed." Halverhout v. Southwestern Milling Co., (Kan.) 155 P 916, 917. 87. Halverhout V. Southwestern Milling Co., (Kan.) 155 P 916; Ackerson v. National Zinc Co., 96 Kan. 781, 153 P 530. 88. See statutory provisions. 89. State v. St. Louis County Dist. Ct., 129 Minn. 423, 152 NW 838. 90. 717. Jillson v. Ross, (R. I.) 94 A 91. Corral v. Hamlyn, (R. I.) 94 A 877. Burden of proof: On arbitration under English act see supra § 108. On original proceedings before board or commission see supra § 112. On review of arbitration committee see supra § 118. etc., 92. Schmoll V. Weisbrod, Brewing Co., (N. J.) 97 A 723; Reimers v. Proctor Pub. Co., 85 N. J. L. 441, 89 A 931; Bryant v. Fissell, 84 N. J. L. 72, 86 A 458; Durocher v. Kinsella, 40 Que. Super. 459. [a] Inferences.-(1) Where the physician in attendance refuses to state that death was caused by the accident, there is no basis for an inference to that effect by the court. Reimers v. Proctor Pub. Co., 85 N. J. L. 441, 89 A 931. (2) "The insistence of the counsel for the prosecutor in that regard is that there was no proof before the trial judge of the age of the brothers and sisters, and that therefore there was no proper basis afforded to fix a compensation based on the paragraph relating to that class. There was testimony before the trial judge that each of the minor brothers and sisters was_under the age of fourteen years. It is a fair inference that several of them are of a very tender age. As the compensation allowed covers a period of three years, it is equally a fair inference that there still will be several of them at the expiration of that period of time who will not have reached the age of sixteen years, the age fixed by statute, when payment therefore entitled to compensation is admitted, evidence as to how the accident happened is immaterial;93 and in this connection evidence of ill treatment of claimant by defendants' foreman may be prejudicial.4 [139] c. Sufficiency. In determining the sufficiency of evidence, doubts should be resolved in favor of the petitioner.95 Circumstantial evidence as to the cause of an employee's death will support an award of compensation.96 [140] 6. Questions of Law and Fact. Whether death was by accident arising out of and in the course of employment presents a mixed question of law and fact.97 [§ 141] 7. Findings and Determination. Where the statute requires that the decree or determination shall contain a finding of facts, such finding Time for filing. A provision that the determina on account of children shall cease." [c] Evidence held not to sustain Havey v. Erie R. Co., 87 N. J. L. 444, | finding.-That claimant's condition 448, 95 A 124. 93. Ruth V. Witherspoon-Englar Co., (Kan.) 157 P 403. Admissibility of evidence: On arbitration under English act see supra 108. On original proceedings before board or commission see supra § 113. On review of arbitration committee see supra § 119. 94. Ruth V. Witherspoon-Englar Co., (Kan.) 157 P 403. 95. A 877. Corral v. Hamlyn, (R. I.) 94 [a] Application of rule.-"In the case at bar the respondents did not deny that the petitioner was injured in his left knee, causing synovitis in said knee, by an accident arising out of and in the course of his employment by the respondents. The only contested issues before said justice were as to whether or not the petitioner had neglected to take proper means to bring about a recovery from said injury, and by his own negligence in regard to said injury had aggravated the same and had thus caused his present state of disability. Those were the only questions considered in the rescript of said justice. In deciding said issue in favor of the petitioner the justice used the language quoted: We think that the petitioner ought to receive the benefit of any doubts.' In this position said justice was right. The rule to be applied is that which governs in an action at law for damages for personal injuries. The injured workman must do nothing to aggravate his condition or prevent his recovery. In an action at law, when the plaintiff has proved the liability of the defendant and the resulting injury to the plaintiff, if the defendant claims that the disability has been and aggravated a cure prevented by the neglect of the plaintiff, the defendant must show those facts as matters of defense, and in regard to those questions it is proper to resolve all doubts in favor of the plaintiff." Corral v. Hamlyn, (R. I.) 94 A 877, 878. [b] Evidence held to sustain findings. (1) That claimant was injured in the course of his employment. State v. Pennington County Dist. Ct., (Minn.) 156 NW 278. (2) That an employee was killed by accident in the course of his employment. Boody v. K., etc., Mfg Co., 77 N. H. 208, 90 A 859, LRA1916A 10. AnnCas1914D 1280 (drowning while cleaning intake). (3) That employer had actual knowledge of accident. State v. Pennington Dist. Ct., (Minn.) 156 NW 278. (4) That claimant was totally disabled. State v. Pennington Dist. Ct., supra. (5) Of permanent_total disability. State V. Blue Earth County Dist. Ct., (Minn.) 158 NW 700. (6) That loss of an eye entailed partial disability. Oliver v. Christopher, (Kan.) 159 P 397. (7) That wages were particular amount. Connors V. Public Service Electric Co., (N. J.) 97 A 792. was caused by original fracture of leg. Ruth V. Witherspoon-Englar Co., (Kan.) 157 P 403. Sufficiency of evidence: On arbitration under English act see supra § 108. On original proceedings before board or commission see § 114. supra On review of arbitration committee see supra § 120. 96. Boody v. K., etc., Mfg. Co., 77 N. H. 208, 90 A 859, LRA1916A 10, AnnCas1914D 1280; De Fazio V. Goldschmidt Detinning Co., (N. J.) 88 A 705. [a] Illustration.—Where an em ployee was found dead under a train of cars, with a hole, about six inches in diameter, in his abdomen, the court said: "A prima facie case of accident was shown. There is noth ing from which self-destruction can be inferred, and the size of the wound indicates that the injury was caused by some unusual happening." De Fazio v. Goldschmidt Detinning Co., (N. J.) 88 A 705. 97. Schmoll V. Weisbrod, etc., Brewing Co., (N. J.) 97 A 723; Smith v. Corson, 87 N. J. L. 118, 93 A 112. Accident as question of law or fact see supra § 54. 98. See statutory provisions. 99. Long v. Bergen County Ct. C. P., 84 N. J. L. 117, 86 A 529. 1. Long v. Bergen County Ct. C. P., 84 N. J. L. 117, 86 A 529. [a] Findings insufficient to support award.-Where on a first hearing the court found that the extent and character of the injuries were uncertain and could not be safely determined at that time, and in a subsequent hearing found that there was no substantial improvement, and that the testimony of the petitioner and physicians was, in substance, that the injuries were total and permanent, there were no specific findings as to the character of the injury from which the court's conclusion that they were total and permanent could be deduced. Diskon v. Bubb, 88 N. J. L. 513, 96 A 669. as [b] Construction of finding as to incapacity-"As to the petitioner's incapacity for work as a result of the injury, the decision of the superior court embodied in paragraph (14) of said decree is as follows: "That as a result of said injury said petitioner was totally incapacitated for his said work up to the 1st day of April, A. D. 1915 (said respondent employer making no objection to this date), and that on and after said 1st day of April. A. D. 1915, said petitioner has not been, and is not, either totally or partially incapacitated for work, but from said date, and at present, said petitioner has been able and is able to perform said work and to receive from said respondent employer the same amount of wages as at and before said injury.' The words in the paragraph that on and after said 1st day of April, A. D. 1915. said petitioner has not been and is not either totally en or partially incapacitated for work,' considered alone, might possibly be held to mean that as a result of the injury he was partially incapacitated for no kind of work whatever in which he might attempt to gage. But from the relation of these words to the rest of the paragraph it seems reasonable to conclude that the words 'partially incapacitated for work' are used in the decree in a restricted sense, and as referring chiefly, if not only, to his former employment as foreman. The words, 'his said work,' occurring earlier and the words, 'said work,' later in the paragraph of the decree refer to the work he was doing as foreman for the respondent. It is the same as if it were said the petitioner, ever since April 1st, has been able to perform his work as foreman in respondent's mill and to receive the same amount of wages as at and before the injury, and therefore he is neither 'wholly or partially incapacitated for work.' This also seems to be what the court had in mind in announcing its oral decision at the close of the hearing, as tranappears by the script.' Weber V. American Silk Spinning Co., (R. I.) 95 A 603, 604. 2. New York Shipbuilding Co. v. Buchanan, 84 N. J. L. 543, 87 A 86. 3. Jillson v. Ross, (R. I.) 94 A 717. "The findings of fact which should be contained in the final decree are the conclusions of said justice as to the issuable or ultimate facts of the controversy. It is not intended that said decree shall include a statement of the evidence or the findings of probative facts from which conclusions are to be drawn as to the issuable facts. In proceedings under this statute, the questions whether an injury to a workman, resulting in his death, arose out of and in the course of his employment, are material issues in the case. It must frequently happen that these questions can be determined only by inferences reasonably to be drawn from other facts directly proved. The determination of each of these issues is a finding of fact, within the meaning of the statute, although it may be merely a conclusion deduced from other facts; and these, and not the evidentiary facts, upon which they are based, are among tion shall be filed within thirty days after final hearing has been held directory only.8 [142] 8. Judgments. A judgment entered on the determination of the court as to compensation is, as to the controversy tried, binding on the parties. Hence, the judgment, in a proceeding brought by an infant, by his next friend, binds plaintiff, to the extent of the questions involved, as effectively as if in a suit for damages generally without reliance on the compensatory features of the statute.10 A judgment for the total amount of the weekly installments, instead of for the proper sum per week for specified number weeks, must be at least in the absen of or any application by either party for a commutation of payments.12 The judgment in some states is required to determine the extent and character of the injury13 and whether the disability is total or partial, temporary or permanent, and it should state definitely the term for which periodical payments must be made." 15 14 16 Opening judgment. On a sufficient showing of newly discovered evidence the court may open a judgment awarding compensation.17 Where the time for which periodical payments are to be made does not exceed six months the order is final under some statutes and the court has no power to modify or to change it at a subsequent term.18 [143] 9. Review-a. In General. Certiorari to review the decision of the court will lie only to award compensation was error. Weber v. American Silk Spinning Co., (R. I.) 95 A 603. 8. Diskon v. Bubb, 88 N. J. L. 513, 96 A 660. 9. Hoey v. Superior Laundry Co., 85 N. J. L. 119, 88 A 823. 10. Hoey v. Superior Laundry Co., 85 N. J. L. 119, 88 A 823. 11. Muzik v. Erie R. Co., 85 N. J. L. 129, 89 A 248. 12. Muzik v. Erie R. Co., 85 N. J. L. 129, 89 A 248. 13. Hanley v. Union Stockyards Co., (Nebr.) 158 NW 939. 14. Hanley v. Union Stockyards Co., (Nebr.) 158 NW 939. 15. Hanley v. Union Stockyards Co., (Nebr.) 158 NW 939. 16. Hanley v. Union Stockyards Co., (Nebr.) 158 NW 939. [a] Illustration.-A judgment that compensation shall continue "under the terms of the Workmen's Compensation Law, at the rate of $8.75 per week from this day during the period of compensation covered by the statute" is indefinite and satisfactory. Hanley v. Union Stockyards Co., (Nebr.) 158 NW 939. 17. State V. Rice County Dist. Ct., (Minn.) 158 NW 825. un [a] Limitations.-The power to open a judgment for compensation rests on substantially the principle which supports the inherent power to grant a new trial and is not limited by the period prescribed in the compensation act within which a review may be had by certiorari; the general statute applies. State V. Rice County Dist. Ct., (Minn.) 158 NW 825. [b] Showing.-Discovery that an injury existed, not known of at time of trial, may authorize opening of judgment. State V. Rice County Dist. Ct., (Minn.) 158 NW 825. 18. Hanley v. Union Stockyards Co., (Nebr.) 158 NW 939. 19. State V. Rice County Dist. Ct., 132 Minn. 100, 155 NW 1057. [a] Illustration.-An order overruling a so-called demurrer, which in fact was a motion to dismiss an application by an employee to vacate a judgment finding that he had fully recovered from his injuries, cannot be reviewed by certiorari before determination of the applica to a final decision or judgment.19 Ordinarily questions cannot be considered which are presented for the first time on appeal.20 But objections need not have been presented below by a motion for a new trial or for amendments to the findings, to permit them to be urged on certiorari.21 The findings of the trial court in the absence of a settled case are presumed to be within the issues litigated at the trial whether presented by the pleadings or not.22 Further, although the trial judge in his rescript does not allude to the evidence, it will be presumed that he made his findings on all the evidence before the trial judge application solely on a point of law dismissed the findings of fact, only the question of law involved in the decision may be reviewed.24 On certiorari, issued on the relation of the one against whom judgment fixing the compensation is entered, the claimant cannot have the record reviewed.25 Bill of exceptions. Where the court has no continuing jurisdiction over the award a bill of exceptions must be settled with reference to the term at which the order is made.20 26 [144] b. Questions of Fact. Although the statutes usually provide that the findings of the trial court shall be conclusive as to the facts,27 they may be set aside on review if entirely unsupported by evidence;28 if there is any legal evidence to support them, however, they will not be disturbed.2 tion. State v. Rice County Dist. Ct., 132 Minn. 100, 155 NW 1057. 20. Gailey v. Peet Bros. Mfg. Co., (Kan.) 157 P 431. [a] Illustration.-A claim of error in rendering judgment, without allowing defendant credit for payments which the workman may have received from the employer during his period of incapacity, is unavailing, where the employer does not request an instruction to the jury covering that question, and it does not appear that the allowance was not made. Gailey v. Peet Bros. Mfg. Co., (Kan.) 157 P 431. 21. State v. Koochiching County Dist. Ct., (Minn.) 158 NW 713. 22. State v. Cass County Dist. Ct., 129 Minn. 156, 151 NW 910. [a] Illustration.-On certiorari to review a judgment for compensation bringing up the pleadings, finding, and judgment, the relator cannot contend that the respondent employer's answer was to not sufficient present the in question decided for only awarding compensation partial disability to relator who, having previously lost an eye, suffered the loss of his remaining eye by the accident on which the application for compensation was based, for the reason that the prior injury was not specially pleaded. State v. Cass County Dist. Ct., 129 Minn. 156, 151 NW 910. 23. Donahue v. R. A. Sherman's Sons Co., (R. I.) 98 A 109; Carroll v. What Cheer Stables Co., (R. I.) 96 A 208. 24. Grinnell v. Wilkinson, (R. I.) 98 A 103. 25. State v. Ramsey County Dist. Ct., (Minn.) 156 NW 120. 26. Hanley v. Union Stockyards Co., (Nebr.) 158 NW 939. 27. See statutory provisions; and Siemientkowski v. Berwind Whate Coal Min. Co., (N. J.) 92 A 909. Review of award of board see supra § 127. 28. Jillson v. Ross, (R. I.) 94 A 717. 718. [a] Discussion of rule.-"Under the Rhode Island Workmen's Compensation Act it is contemplated that the decision of the justice of the superior court and the decree of that court shall be based upon evidence and not arbitrarily made. If the 29 | record discloses that a finding of fact is entirely without legal evidence tending to support it, such finding amounts to an error of law and will be reviewed by this court upon appeal and set aside. The respondent in the case at bar asks this court to go farther, to consider the evidence given before the justice of the superior court and to pass upon its sufficiency. His claim is that the evidence is insufficient to support the finding that, while the said Reuben O. Jillson was engaged in the employ of the defendant, he received a personal injury by accident arising out of and in the course of said employment. By 'insufficient evidence' the respondent means that the finding is contrary to the evidence or against the weight of evidence. If. in support of an issue, there is any which evidence might satisfy a rational mind, then there is legal evidence supporting such issue. The questions as to the sufficiency of such legal evidence, and where lies the fair preponderance of the evidence on such issue, are questions of fact and not of law. In trials by jury, the questions of the weight and the preponderance of the evidence, and hence, in the sense in which the term is here used, the sufficiency of the evidence, is submitted to the jury. It cannot be urged that thereby questions of law are presented to the jury for their determination. If, in appeals under the Workmen's Compensation Act, we should enter upon the consideration of such questions, in our opinion we should defeat the plain intention of the Legislature. In view of its other provisions, we hold that, when the act provides for appeals to this court upon questions of law, such provision, does not refer to the question of the sufficiency of the evidence to support the findings of fact. Nor do we think that the provisions of the Rhode Island Constitution require us to undertake such a review of said findings of the superior court made under said act." Jillson v. Ross, supra. 29. Gailey v. Peet Bros. Mfg. Co., (Kan.) 157 P 431; Hulley v. Moosbrugger, 88 N. J. L. 161, 95 A 1007. LRA1916C 1203; Krauss v. Fritz, 87 N. J. L. 321, 93 A 578; Jackson v. [§ 145] c. Questions of Law. Although the findings of the court below as to the facts in workmen's compensation cases may be conclusive on appeal, nevertheless the law arising on the ascertained facts is a question for the court reviewing the decision, 30 as are also, obviously, questions as to the proper construction of the statute.31 Finding of ultimate facts involving conclusions of law may be reviewed in so far as they involve the determination of such questions of law. 32 33 of the week does not require either a reversal or modification of the judgment.3 40 39 [147] e. Disposition of Appeal. On a motion to dismiss the appeal the judgment may be affirmed, where the cause has been fully presented and the judgment below was correct.3 On reversal of a judgment for defendant for errors of law, the cause must be retried where the judge who tried it in the first instance has gone out of office,38 unless the parties agree to submit it on the evidence already taken;3 a like disposition in a similar case must be made of the cause where a judgment for plaintiff is reversed for an insufficient finding of facts, and the trial court cannot be ruled to correct the record by an amended finding of facts." On an appeal by defendant from a judgment against him, the plaintiff may by a motion to dismiss raise the question whether the questions of law involved are so doubtful as to require the filing of briefs; and, if on the resulting hearing the court is fully satisfied that no grounds for a reversal exist, an affirmance will be ordered.42 A judgment for a lump sum, in the absence of any finding justifying it, will cusing the giving of notice, will not be reviewed in the absence of fraud. Donahue v. R. A. Sherman's Sons Co., (R. I.) 98 A 109. [§ 146] d. Harmless Error. An error which involves no substantial injury may be disregarded.3 The employer cannot complain of an error which resulted in awarding the employee less compensation than that to which he was entitled.34 Error in awarding compensation for a temporary injury for a number of weeks, in excess of the maximum number of weekly payments allowed by the statute, is not rendered harmless by the reservation of right to a modification in case of an earlier termination of temporary disability.35 The fact, however, that without statutory authorization the court requires payments of compensation to be on a specified day Erie R. Co., 86 N. J. L. 550, 91 A 1035; Bryant v. Fissell, 84 N. J. L. 72, 86 A 458; Weber v. American Silk Spinning Co., (R. I.) 95 A 603. See Giachas v. Cable Co., 190 Ill. A. 285. "When the judgment of the Common Pleas Court is removed by certiorari to the Supreme Court, the function of the writ is that of a writ of error. In such case the Supreme Court accepts the findings of the Common Pleas Court upon the facts if there be any legal evidence to warrant them." Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 91, 86 A 451. "The General Assembly has given to the superior court the exclusive final jurisdiction to determine such questions of fact, and that the consideration of the preponderance of the testimony cannot be brought before us upon appeal." Corral V. Hamlyn, (R. I.) 94 A 877. [a] Applications of rule to particular findings.—(1) Accident arising out of and in the course of employment. State v. Meeker County Dist. Ct., 128 Minn. 220, 150 NW 623; Winter v. Atkinson-Frizelle Co., 88 N. J. L. 401, 96 A 360; Blackford v. Green, 87 N. J. L. 359, 94 A 401; Zabriskie v. Erie R. Co., 86 N. J. L. 266, 92 A 385; Muzik v. Erie R. Co., 85 N. J. L. 129, 89 A 248; Carroll v. What Cheer Stables Co., (R. I.) 96 A 208; Jillson v. Ross, (R. I.) 94 A 717. (2) Relation of employer and employee. State v. Meeker County Dist. Ct.. 128 Minn. 221, 150 NW 623. (3) Notice of injury. Troth v. Millville Bottle Works, 86 N. J. L. 558, 91 A 1031. (4) Incapacity of employee. Gailey v. Peet Bros. Mfg. Co., (Kan.) 157 P 431. (5) Duration of incapacity. Gorrell Battelle, V. V. V. 93 Kan. 370, 144 P 244; Scott State 30. Hulley v. Moosbrugger, 88 N. J. L. 161, 95 A 1007, LRA1916C 1203. 31. Rakiec v. Delaware, etc., R. Co., (N. J.) 88 A 953. [a] Amount of compensation. Whether or not the trial judge should allow for an injury to a limb more than the amount which the statute expressly limits him to in the case of an amputation is a question involving the construction of the statute. Rakiec v. Delaware, etc., R. Co., (N. J.) 88 A 953. 32. Jillson v. Ross, (R. I.) 94 A 717. "In petitions brought under this act, the findings by the superior court of the ultimate facts of the controversy, in many instances, will involve and be based upon conclusions of law, as, for instance, in regard to the legal effect of the terms of a contract, the validity of an alleged marriage, and concerning many other legal questions that may arise under these petitions." Jillson v. Ross, (R. I.) 94 A 717, 719. 33. Oliver v. Christopher, (Kan.) | com [a] Incompetent evidence.-"The was clearly not prejudicial." State [b] Failure to file written decision. 41 as a part of the record, the conclusions of the justice, in accordance with which the final decree may be drafted by the parties. In this case the same justice who heard the evidence ordered the entry of the final decree, and there is no claim made that the recitals in the decree are contrary to the findings of said justice. While this provision of the act makes it the duty of the justice hearing the cause to file such written decision, we are of the opinion that his failure to do so should not be charged against the appellee, and the decree reversed therefor, unless it is made to appear that the appellant has been prejudiced by such failure. In the case at bar no attempt has been made to show such prejudice." Jillson v. Ross, (R. I.) 94 A 717, 719. [c] Allegations as to negligence.— The refusal to strike from a petition, under the workmen's compensation act (L. [1911] c 218), allegations regarding negligence is not material error, where in the light of the entire record it clearly could not have resulted Oliver in prejudice. Christopher, (Kan.) 159 P 397. 34. De Zeng Standard Co. V. Pressey, 86 N. J. L. 469, 92 A 278. 35. Birmingham v. Lehigh, etc., Coal Co., (N. J.) 95 A 242. V. 36. Conners v. Public Service Electric Co., (N. J.) 97 A 792. 37. Smith v. National Sash, etc., Co., 96 Kan. 816, 153 P 533. "The Workmen's Compensation Act contemplates the speedy adjustment of claims under it. If the determination of the amount to be paid must await the relatively slow process of litigation through an appellate court, its main purpose will be defeated and its beneficent operation thwarted. In a case of this character the plaintiff may well raise the question whether the issue of the appeal is so far doubtful as to require the ordinary routine to be followed; and where upon the preliminary hearing resulting from such challenge the court is fully satisfied that no grounds for a reversal exist, the judgment should be made final without further delay." Cain v. National Zinc Co., 94 Kan. 679, 681, 146 P 1165, 148 P 251. 38. West Jersey Trust Co. V. Philadelphia, etc., R. Co., 88 N. J. L. 102, 95 A 753. 39. West Jersey Trust Co. V. Philadelphia, etc., R. Co., 88 N. J. L. 102, 95 A 753. 40. Long v. Bergen County Ct. C. P., 84 N. J. L. 117, 86 A 529. 41. Long v. Bergen County Ct. C. P., 84 N. J. L. 117, 86 A 529. 42. Cain v. National Zinc Co., 94 Kan. 679, 146 P 1165, 148 P 251. be reversed and the record remitted to the common pleas for an ascertainment by said court, based on facts found from legal evidence, of the propriety, or otherwise, of commuting the weekly payments to a lump sum. A judgment for a lump sum in too large an amount may be modified and affirmed.44 43 [148] J. Enforcement of Award-1. In General. When the compensation is payable by the employer or by a private insurer, the statutes usually provide for the docketing of the award of a board or commission in a particular court and the giving it the force and effect of a judgment, or for the filing of the decision of the court, when the application is to the court, and the giving it a like effect. The granting of a supersedeas of the decree pending an appeal is, under some statutes, discretionary and not reviewable.* 45 46 Assignment. Where the statute forbids the assignment of claims for compensation, a physician rendering services to the injured employee cannot maintain an action therefor against the employer, although the employee has been awarded compensation including medical services and has assigned that portion of his award to the physician.47 Deduction and offsets. A deduction may be made from the weekly payment of a sum which the employee has agreed to pay for rent.48 The employer, where the amount of weekly payments has been reduced, cannot set off against future payments the amount previously overpaid, where the statute prohibits the setting off of any claim against a weekly payment, nor can over-payments made by mistake be set off.50 49 Under the English act the award, when registered, may be enforced in the manner of a county court judgment.51 Where a registered agreement is for the payment of compensation during total incapacity, execution should not issue thereon where 43. New York Shipbuilding Co. v. Buchanan, 84 N. J. L. 543, 87 A 86. 44. Girten v. National Zinc Co., 98 Kan. 405, 158 P 33. 45. See statutory provisions. 46. Massachusetts Bonding, etc., Co. v. Peloquin, (Mass.) 113 NE 574. 47. Bloom v. Jaffe, 94 Misc. 222, 157 NYS 926. 48. Brown v. South Eastern, etc., R. Co., 3 BWCC 428. 49. Hosegood v. Wilson, [1911] 1 K. B. 30, 4 BWCC 30. To same effect Doyle v. Cork Steam Packet Co., 5 BWCC 350. [a] Setting off costs against weekly payment.-An employer who has been found liable to pay compensation, by way of weekly payments, under the act, to a workman is not entitled to set off against those payments a sum awarded to him as costs against the workman in an application for the diminution of the weekly payments. Rosewell Gas Coal Co. v. McVicar, 7 F. (Ct. Sess.) 290. 50. Muller V. Batavier Line, 2 BWCC 495. 51. Bailey v. Plant, [1901] 1 K. B. 31, 3 WCC 209 [rev 2 WCC 160] (holding that committal order might issue); Johnson v. Adshead, 2 WCC 158. 52. Warren v. Roxburgh, 5 BWCC 263, 106 L. T. Rep. N. S. 555; Said v. Welsford, 3 BWCC 233. 54 the employer makes a showing that total incapacity In British Columbia execution may be restrained by an action in the supreme court.57 [149] 2. Insolvency of Employer. In case of the insolvency of the employer the right to compensation and to the payments of compensation awarded is by some acts given a preference, usually that accorded to unpaid wage claims generally.58 Debts due in respect of compensation are, to the amount of £100, in each case made by the English act a preferential claim in event of the bankruptcy of the employer. 59 Receivership. When a receiver is conducting the business of the original employer during insolvency he is bound to continue payments of compensation. 61 Rights against insurers. Under the English act and similar provisions in certain of the other statutes,62 any rights which the employer might have had under any contracts of insurance against liabilities under the act are, on bankruptcy or liquidation of the employer, transferred to the employee; but the insurers are not under any greater liability to the employee than they would have 63 Ch. 303, 6 BWCC 934. See Homer v. [a] Where employer is insured [b] Costs of obtaining award.-The costs of obtaining an award under the workmen's compensation act of 1906 are not payable in priority to all other debts in a bankruptcy. Woods V. Winskill, [1913] 2 Ch. 303, 6 BWCC 934; In re Jinks, 112 L. T. Rep. N. S. 88. 60. Wood v. Camden Iron Works, 221 Fed. 1010. [a] Reason for rule.-"The act specifically provides that the agreement shall bind 'those conducting the employer's business during bankruptcy or insolvency.' It therefore follows that a receiver, who is conducting the business of the original employer during insolvency, as in this case, is, by the terms of the act, bound to make the payments which the employé (or his representatives) was entitled to receive from the original employer during the time that he conducts the business. It is thus a burden placed upon the continuance of the business. If, in any given case, it is deemed proper that the business of the employer should be continued during bankruptcy or insolvency, or any part thereof, the law provides that the agreement which was originally entered into between the employer and the injured Woods v. Winskill, [1913] 2'employé, and every part thereof, 53. Said v. Welsford, 3 BWCC 233. 54. In re Byrne, 3 BWCC 591. Price v. Westminster Brymbo Coal, etc., Co., [1915] 2 K. B. 128, 8 BWCC 257. 55. 56. Daniel V. Ocean Coal Co., [1900] 2 Q. B. 250, 2 WCC 135. 57. British Columbia Copper Co. v. McKittrick, (B. C.) 7 BWCC 1037. 58. See statutory provisions. 59. must be fulfilled by the receiver to the same extent as the employer would have been compelled to fulfill it. It therefore follows that, as the requirement to make the weekly payments to the employé, or his representatives, is a burden cast by the law upon those who continue the business, the payments to be made by the receiver must be classed as operating or administrative expenses." Wood V. Camden Iron Works, 221 Fed. 1010, 1011. 61. Workmen's Compensation Act (1906) § 5. 62. See statutory provisions; and Disourdi v. Sullivan Group Min. Co., 15 B. C. 305. 63. Craig v. Royal Ins. Co., 8 BWCC 339, 112 L. T. Rep. N. S. 291; Daff V. Midland Colliery Owners' Mut. Indemn. Co., 6 BWCC 799, 109 L. T. Rep. N. S. 418 [rev 5 BWCC 671, 107 L. T. Rep. N. S. 836]; In re Law Car. etc., Corp., 110 L. T. Rep. N. S. 27 (on liquidation of insurance company, its liability is established under Assurance Companies Act). [a] A mutual insurance company formed by the association of employers is within the act. Daff v. Midland Colliery Owners' Mut. Indemn. Co., 6 BWCC 799, 109 L. T. Rep. N. S. 418 [rev 5 BWCC 671, 107 L. T. Rep. N. S. 836]. [b] Statutory subrogation.-The workman as against the insurers is subrogated to the position of the employers. Morris v. Northern Employers' Mut. Indemn. Co., 4 WCC 38, 86 L. T. Rep. N. S. 748; Northern Employers' Mut. Indemn. Co. v. Kniveton, 4 WCC 37, 86 L. T. Rep. N. S. 721. [c] British Columbia.-(1) Under Workmen's Compensation Act (1902) § 6 the workman, on insolvency of the employer, is not entitled to main |