Where employee had received compensation while out of work because of
injury and returned to work and had been thereafter discharged, evi-
dence held to sustain finding that he had regained his capacity for
work before being discharged. Blanchi v. Board of Com'rs of Port of
New Orleans. (La.)
In action for death of employee, held under facts that court properly
awarded lump sum rather than weekly allowance. Hartford Acc. &
Indem. Co. V. Durham. (Tex.)
Evidence held insufficient to prove employee was suffering permanent par-
tial disability beyond loss of one finger, for which he received compen-
sation, by reason of stiffness of two other fingers. Hardin v. Higgins
Oil & Fuel Co. (La.)
Award for loss of 72% of use of hand because of loss of thumb and fore-
finger, based solely on table adopted by resolution of commission fixing
percentage of loss of use of hand occasioned by specified injuries, must
be set aside. Bubniak v. John K. Stewart & Sona (N. Y.)
Evidence held sufficient to take to jury question of declarant's fear of im-
pending death and question of credibility of declarations. Vassar V.
Swift & Co. (Kan).
Evidence held sufficient to take to jury contention that injury was result
of blow. Stewart & Co v. Howell. (Md.)
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Where company became subrogated to rights of widow and heirs to recover
against stranger for death of employee by paying compensation, and
where only damage pleaded and supported by widow, instruction author-
izing recovery to two sons as well, was erroneous. -Admission by de-
fendant's counsel that right of widow and heirs to recovery vested in
Insurer who paid fees does not warrant charge authorizing insurer to
recover damages to sons of deceased where it pleaded only damage to
widow. Mass. Bonding & Ins. Co. v. Los Angeles R. Corp. (Calif.) .. 258
Requested instruction that jury has no right to find defendant employer
guilty of negligence unless there is evidence to support it, nullifies statu-
tory presumption against employer rejecting act. Mitchell v. Mystic
Coal Co. (Iowa)
410.
TRIAL OR HEARING BY COURT-VERDICT AND FINDINGS.
It is sufficient that employer, who has rejected act, sued for injury to em-
ployec, has not negatived or rebutted statutory presumption of negli-
gence. Mitchll v. Mystic Coal Co. (Iowa)
— EXECUTION AND ENFORCEMENT OF JUDGMENT OR
AWARD.
§ 411%2.
Where woman, alleged wife and dependent of deceased workman, recovered
judgment against employer under act, subsequuently dying herself, and
where judgment was revived in name of her administrator and where
on new trial it was shown she was not wife of deceased, held judgment
should have been set aside and new trial granted. Stokes v. Morris &
Co. (Kan.)
412.
APPEAL OR OTHER PROCEEDING FOR REVIEW.
Court has power to reverse judgment in proper case if evidence shows
Inadequacy in amount of verdict, or to reverse judgment that appears
excessive and grant new trial unless remittitur be filed in such sum
as court may deem just. Brown v. York Water Co. (Neb.).....
Where demand for compensation was not made in time required and ΠΟ
allegation of incapacity was made, yet where there was evidence of in-
capacity, judgment should not be reversed and cause dismissed on em-
ployer's appeal but case should be remanded to lower court. Georgia
Casualty Co. V. Ward. (Tex.)
Where answer was general denial and at trial it was shown that no notice
of accident was given to employer as required, and record failed to show
that question was called to attention of court, held it is too late to
raise question on appeal. Vassar v. Swift & Co. (Kan.)....
166
Only questions of law are reviewable by court in compensation cases
Whether evidence sustains finding of fact does not become question of
law unless all reasonable and impartial minds would reach only one
conclusion finding that relator was voluntarily living apart from hus-
band must stand State ex rel. Kile v. District Court, Hennepin County.
(Minn.)
PROCEEDINGS BEFORE BOARDS OR COMMISSIONS.
Issue of dependency being one of fact, commission's conclusions will not be
interfered with if supported by substantial evidence, and if commission
erred in findings of fact and conclusions, court cannot correct error.
McVicar v. Indus. Comm. of Utah. (Utah)
Claimant's counsel was entitled to rely on stipulation to take further tes-
timony and was not required to make statement to commission of what
he proposed to prove by witnesses he desired to produce. McVicar v.
Indus. Comm. of Utah (Utah.)
-REPORT AND FINDINGS OR AWARD.
Courts cannot look for same precision in adjudications by board
as other-
wise might be insisted on if members were required to be learned in
law. Whittle v. Nat'l Aniline & Chem, Co. (Penn.)
Since provisions of act as amended do not provide for notice to insurance
carrier nor making it party to agreement for compensation, such agree-
ment, approved by board, is binding upon parties until revoked though
insurer had no actual notice of its execution or approval-insurer is
party in interest entitled to all of employer's rights including that of
appeal and on its request should be made party, and is then entitled to
apply to vacate order approving agreement-while board has power in
case of fraud, duress or mistake to vacate its approval, application there-
for should not be to allow a party to make new and distinct cause-
mere misconception on part of insurance carrier as to law is not of it-
self such mistake as will authorize setting aside of agreement approved
by board. Frankfort Gen. Ins. Co. v. Conduitt. (Ind.)
Though not expressly authorized to correct its awards except as provided
for purpose of readjusting compensation, board has inherent power to
correct errors, inadvertences, and mistakes in entry of its awards; but
such authority must be exercised in harmony with provisions of act giv-.
ing courts jurisdiction to set aside awards. Blair v. Millers' Indem,
Underwriters (Texas)
Determination by referee that wife, though not living with husbsand at
time of death, was actually dependent on him for support, was finding
of fact and should have been so stated instead of stated as conclusion
of law. Morris v. Yough Coal & Supply Co. (Pa.)..
Commisioner need not include in present award injury whose extent or
prognosis cannot be then determined.-Expression
on belief by com-
missioner has no place in his finding and must be disregarded. Saddle-
mire v. American Bridge Co. (Conn.)..
Right to sue under act is not dependent on notice of intent not to abide by
award. Texas Employers' Ass'n. v. Roach. (Tex.)
Where there is no voluntary payment by employer, and commission must
determine compensation for death of employee, it is its further duty to
determine person entitled to same. Henry Pratt Co. v. Indus. Comm.
(Ill.)
Claimants having established partial dependency, award based on average
weekly wage of deceased was not invalid because commission failed to
make finding as to amount of daily wage. Gea A. Lowe Co. v. Indus.
Comm. of Utah. (Utah.)
Where claim filed with commission by widow and report of accident filled
by insured both stated that deceased was employed by insured, and
where insurance carrier did not ask for hearing or appeal from award
by commission but commenced payment of compensation, it could not
thereafter obtain relief on ground that deceased was not employed by
Insured, in absence of allegations of fraud, intentional concealment or
that it was prevented from obtaining knowledge of all facts. U. S...
Fidelity & Guaranty Co. v. Taylor (Md.).
458
Commissioner who, supposing employee deprived of sight of right eye was
not one-eyed man as was case, approved voluntary settlement on that
basis, held empowered to reopen award on basis of total, permanent in-
capacity. Fair v. Hartford Rubber Works. (Conn.)
Findings and award under act need not recite details of procedure. Hack-
ley-Phelps-Bonnell Co. v. Indus. Comm. (Wis..)..
Finding of commission, which fails to show employee's knowledge of injury.
written notice, or excuse, is insufficient to sustain award-award cannot
be sustained in absence of such knowledge or notice though evidence
shows knowledge and excuse for failure to give written notice. Standard
Cabinet Co. v. Landgrave (Ind.)..
PROCEEDINGS BEFORE BOARDS OR COMMISSIONS-RE-
VIEW BY COURT IN GENERAL,
(1). Nature and form of remedy.
Where board's award, though erroneously entered against one who was not
a party, was one that claimant did not wish to consent to his only
remedy was to give notice of dissatisfaction and bring suit to set it aside
Blair v. Millers' Indem. Underwriters. (Texas)
Amendment of act to provide review of decisions of commission on cer-
tiorari or review in Supreme Court in first instance instead of district
court held not to have affected cases pending and being prosecuted
prior to time amendment became effective. Indus. Comm. v. Agee.
(Utah)
Proceedings under act are purely statutory and appeal to court is in nature
of certiorari Morris v. Yough Coal & Supply Co. (Penn.)...
District courts being courts of original jurisdiction, it was with constitu-
tional power of legislature to provide in act that trial of compensation
cases in district court should be de novo but power giving court is
that of review rather than trial anew. Willis v. Pilot Butte Mining
Co. (Mont.)
1. reviewing, on certiorari, award under act by commission, circuit courts
exercise special jurisdiction, conferred by act and cannot maintain such
proceeding by virtue of general powers-Only circuit court of county
where someone of parties defendant shall be found has jurisdiction to
issue such writ of certiorari and writ issued by court of county wherein
none of parties defendant reside is in excess of jurisdiction. Central
Illinois Public Service Co. v. Industrial Com. et al. (III.)
Though circuit court of county which issued such writ was without jurisdic-
tion because none of parties defendant reside in county, court having
issued writ may nevertheless transfer proceeding to court of county
wherein someone of defendants reside and which has jurisdiction. Cent'l
Ill Pub. Serv. Co. v. Ind. Comm. (Ill.)
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Word "award" in act authorizes appeal within 30 days from date of award,
does not limit writ of appeal to matter wherein compensation has been
awarded or denied, and appeal lies from final order of board denying
application by insurer to set aside approval of agreement. Frankfort
Gen. Ins. Co. v. Conduitt. (Ind.)
Right of review.
Parties.
(34%). Proceedings for appeal or other form of review.
(4).
Presentation and reservations of grounds of review.
(44%). Record.
Transfer of controversy to court by bringing suit to set aside award does not
affect board's right to correct clerical errors when such are manifest
from record of proceedings in same manner as judicial tribunals by nunc
pro tunc orders-Where claimant gave notice of refusal to accept award
and brought suit to set it aside, notice was insufficient though board
thereafter changed award to make it run against insurer who was party
to proceeding instead of against stranger, since subsequent entry was
merely to correct error. Blair v. Millers' Indem. Underwriters. (Texas) 105
Appeal entered thirty-one days after decision of Commission is too late and
court obtains no jurisdiction. Holland Mfg. Co. v. Thomas. (Md.)......184
Bult for certiorari was begun by filing præcipe for writ where employe
filed in time such præcipe for scire facias court can thereafter issue
allas writs to replace those lost before service on commission or em-
ployer. Oriental Laundry Co. v. Industrial Comm. (Ill.) ...
Reference in appeal to testimony taken by commissioner in proceedings,
making transcript thereof part of appeal, does not bring transcript be-
fore court.-Finding for award under act is not reviewable in absence of
transcript. Gates v. A. G. Dewey Co. (Vt.)....
Where, without direct authorization of Governor, Attorney General brought
action in court to review award of commission, and Governor did not act
to direct him to bring action until after period of time set by act from
date of order or award, court was without jurisdiction of action, despite
Governor's nunc pro tunc direction to Attorney General, and motion to
dismiss should be granted. State v. Indus. Comm. (Wis.)
Notice of appeal from compensation award may be waived where petition
for review is filed within time required by law. Mucha v. Morris &
Co. (Neb.)
Petition for certiorari to review order of commission will be denied where
petitioner includes privilege of filing reply to commission's answer show-
ing that findings complained of are sufficiently supported by evidence.
Wetern Indem. Co. v. Indus. Acc. Comm (Cal.)...
Assignment of error on appeal from award by board that award is con-
trary to law is sufficient to present question of sufficiency of evidence.
Kramer v. Huntington Steel Foundry Co. (Ind.)
Assignment of error that award was contrary to law presents question
as to sufficiency of evidence. Alexander Box Co. v. Cutshall. (Ind.)
Refusal of trial judge to define word "dependents" was not erroneous as
statute itself failed to define it. Southern Surety Co. v. Hibbs. (Tex.).. .224
On review of award by commission, employer cannot object to testimony
s hearsay which he brought out by cross examination of applicant
where he made no objection or motion to strike it from record. Steel
Sales Corp. v. Indus. Comm. (Ill.)
On appeal from award of commissioner, entire finding and memorandum
decision are to be read together as whole. Saunders v. New England
Collapsible Tube Co. (Conn.)
Employer,, suing to set aside award to injured servant by commission, could
amend complaint by setting up matter relating to settlement by injured
employee with third party whose negligence caused injuries. Harloff
V. Merwin. (Wis.)
Provision placing burden of proof on one appealing from decision of com-
mission does not cast added burden on claimant who is denied compen-
sation by it. Stewart & Co. v. Howell. (Md.)
Where it does not clearly and indubitably appear that discretion of com-
mission has been abused, its decision is final and unassailable. McVic-
ar v. Indus. Comm. of Utah (Utah.)........
Commission, when applied to for lump sum payment, must exercise its judg-
ment and discretion as to best method of making compensation in light
of all facts. Stephenson v. State Indus. Comm. of Okla. (Okla.).
Petition for certiorari to review order of commission on ground of want of
evidence not stating material evidence relative to point, will be denied.
Western Indem. Co. v. Indus. Acc. Comm. (Cal.)..
Party charging fraud in award in record on review by court under act has
ample remedy by offering proof of such charges, and may also show,
If such be fact, that document in record purporting to be finding and
award of commission was not in fact its act.-In action to set aside
award, award will be presumed to have been regularly made. Hackley-
Phe, Bonnell Co. v. Indus. Comm. (Wis.).
Claimant cannot, on appeal, avail himself of board's rule making want of
notice a defense. Standard Cabinet Co. v. Landgrave (Ind.).
Court will not review findings of fact by board. Leitz v. Labadie Ice Co.
(Mich.)
Finding of commission that engine on which employee was killed was not
engaged in interstate commerce at time, held conclusion of law pre-
senting reviewable question on jurisdiction. Hines v. Indus. Acc. Comm.
(Cal.)
Legal conclusions of commission may be reviewed. Reid v. Automatic Elec.
Washer Co. (lowa)
Finding of commission must be sustained by courts where supported by sub-
stantial evidence. Amalgam Sugar Co v. Indus. Comm. of Utah. (Utah) 112
Finding of referee, approved by board, that claimant's husband while in de-
fendant's employ received injuries by accident which caused his death
is conclusive. Ferri v. Lenni Quarry Co. (Penn.)
Extent of permanency of disability is question of fact and when supported
by evidence, finding of board that hand had not been rendered perman-
ently incapable of use is conclusive, and warrants ruling that compen-
sation for total incapacity should cease. Barry's Case. (Mass. )
Where evidence tends to support finding of board its award will not be dis-
turbed on appeal. Kramer v. Huntington Steel Foundry Co. (Ind.)
Award by board will be treated as having same force as verdict and will
not be disturbed if supported by evidence. Rudnick v. White Bros. (Del.)..138
On appeal from award, court does not weigh evidence. Alexander Box Co. v.
Cutshall. (Ind.)
Decision of Commission is final as to question of fact. Choctaw Portland
Cement Co. v. Lamb. (Okla.)
Sufficiency of evidence on question of dependency is not subject to review
by court where there is substantial evidence tending to establish findings
of commissioner. Day v. Sioux Falls Fruit Co. (S. D.)
Finding of board that death was result of accident arising out of employ
ment will not be disturbed where there is evidence to support it. Board
of Com'rs of Greene County v. Shertzer. (Ind.)
Whether or not death was result of accident arising out of employment was
question of fact for board. Miller v. Bell. (Ind.)
... 315
While board will not be reversed for admission of hearsay evidence if there
is any proper evidence to support finding where there is only incompetent
hearsay evidence finding must be held unsupported. Blozina v. Castile
Mining Co. (Mich.)
Whether mother who received $10 a week from husband was partially de-
pendent on son held question of fact. Henry Pratt Co. v. Indus. Comm.
(III.)
Findings of commission on question of fact are conclusive where there is
substantial evidence in support. Western Indem. Co. V. Indus. Acc.
Comm. (Calif.)
Where there was evidence from which it could be inferred that accident so
reduced employe's vitality that he succumbed to illness causing death,
court on certiorari will not disturb board's finding that death resulted
from accident. Tanner v. Aluminum Castings Co. (Mich.)
Question of dependency is one of fact and court will not interfere with de-
cision of commission if there is evidence tending to sustain it. Alden
Coal Co. v. Indus. Comm. (Ill.)
On appeal where essential finding is based on inference, if it is one which
reasonable man could not draw in reasonable way finding cannot stand
court, on appeal from findings of commissioner, does not weigh evi-
dence, but may determine whether finding should be corrected or wheth-
er there was any evidence to support conclusions reached. Saunders
v. New England Collapsible Tube Co. (Conn.)
Whether fall or acute cardiac dilation caused death held question for com-
mission. Insana v. Nordenholt Corp. (N. Y.)..
Decision of commission is conclusive on question on. dependency of claim-
ants where sustained by substantial testimony. Geo. A. Lowe Co. v.
Indus. Comm. of Utah. (Utah.)
Where amount of compensation awarded by commission is sustained by sub-
stantial evidence it is not province of reviewing court to disturb it.
Geo. A. Lowe Co. v. Indus. Comm. of Utah (Utah)
Finding of fact by commission, supported by evidence is conclusive on ap-
peal from award. Finkleday v. Henry Heide, Inc. (N. Y.)
Question of dependency is one of fact and unless commissioner has applied
illegal standard or found facts without evidence, court cannot review
finding. McDonald v. Great Atlantic & Pacific Tea Co. (Conn.)
Board is trier of facts and where there is evidence supporting finding it will
not be disturbed. St. Clair v. A. H. Meyer Music House. (Mich.)
.... 540
Conclusion of commission as to annual amount of contribution to dependents
is question of fact, not subject to reviw if supported by evidence.
Popst v. Indus. Acc. Comm. (Cal.)
Under provisions of act as to payment, duration of incapacity is one of fact
to be determined as other questions of fact are determined-under act
decision of commission is final as to all questions of fact. Stephenson
v. State Indus. Comm of Oklahoma (Okla.)..
Where there is not sufficient competent evidence in record to warrant find-
ing of commission, finding is not conclusive. Reid v. Automatic Elec..
-Washer Co. (Iowa;
Court cannot disturb award of commission unless based on unreasonable
conclusion from evidence. Engels Copper Mining Co. v. Indus. Acc.
Comm. (Cal.)
Findings and award of arbitrators and industrial commissioner should not
be reversed for failure to observe formal rules of evidence applicable
to trials before law courts unless it clearly appears appellant has been
prejudiced in some substantial right. Day v. Sioux Falls Fruit Co. (S. D.)..216
Basis of computation for employe working six days a week at $4.00 a day
was $24 so that employer and insurer could not complain of computation
on basis of 300 working days a year which made weekly wages less than
$24. Uintah Power & Light Co. v. Indus. Comm. of Utah. (Utah)...... 229
(9). Determination and disposition of cause.
Under provision authorizing court to remand cause to commission for fur-
ther proceeding, stating the question required further hearing, it should
on application do so, there being merely insufficiency of proof as to ex-
istence of alleged beneficiaries. Nat'l Zinc. Co. v. Ind. Comm. (Ill.)
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