tenance, held not dependent upon deceased son contributing only like
amount. Klein v. Brooklyn Heights R. Co. (N. Y.)..
Evidence sustains finding that employee met death in course of employment-
children under 16 conclusively presumed dependents and where father
had deserted the deceased mother several years before, children are
"orphans" for purpose of fixing award. State ex rel Radisson Hotel
v. Dist. Court of Hennepin Co. (Minn.).
Allen's widow, residing in foreign country, is not entitled to conclusive
presumption of dependency, but extent of dependency is question of fact.
Perotti's Case (Mass.).
To constitute "desertion" creating presumption that surviving spouse is
wholly dependent upon decedent unless she wilfully deserted him, there
must be cessation of marriage relation, intent to desert, and absence of
consent or misconduct of party alleged to have been deserted-where
husband is unable to support wife, her separation with his consent to
earn wages does not constitute desertion. James Black D. G. Co. v.
Iowa Indust. Com'r (Iowa)
Woman, who in good faith lived with employee as lawful wife, believing
marriage license constituted marriage, held entitled to recover for his
death as "dependent." Temescal Rock Co. v. Indust. Acc. Comm. (Cal.). 474
Question of dependency to be determined in accordance with fact at time of
injury-parital dependency may be found though dependent might have
subsisted without the aid-finding of partial dependency by claimant,
mother of deceased employee, boy of 16, cannot be pronounced erroneous
in law, where boy after leaving home, promised to send her all earnings
except needs for board and clothes and was killed before first pay day,
so had no opportunity to remit money. Freeman's Case-In re Automatic
Time Stamp Co.-In re Amer. Mut. Liab 18. Co. (Mass.)....
SUBROGATION TO RIGHTS OF INJURED EMPLOYEE.
If workman, injured by negligence of third party, obtains from employer as-
signment of right to bring action, it may be maintained directly by in-
jured workman against negligent third party. Thomas v. Otis Eleva-
tor Co. (Neb.)
Where employee is injured in course of employment by actionable negligence
of third party, statutory remedy accrues to him or dependents for com-
pensation against employer and common-law remedy against third party,
though he cannot proceed against both. If he elects the former, he
waives the latter and employer is subrogated. Carlson v. Minneapolis
St. Ry. Co. (Minn.)..
Employer's right to recover amount which he was compelled to pay to em-
ployee's dependents from third party, whose act was cause of accident,
depends upon whether negligence of third party was proximate cause of
injury. Carlson v. Minneapolis St. Ry. Co. (Minn.)..
513
In action against electric company by city as subrogee of widow of fire-
man electrocuted while discharging his duties, defendant cannot set up
contributory negligence of city in not condemning wire's location-
conventional subrogation made by widow of such employee, authorizing
oity to sue held valid. City of Shreveport v. Southwestern Gas &
Elec. Co. (La.)..
605
Compensation paid by insurance carrier to injured employee cannot be re-
covered by insurer from actual wrongdoer from whom employee recov-
ered full damages before payment of compensation. Southern Surety
Co. v. Chicago, St. P., M. & O. Ry. Co. (Iowa).
Injured employee could not repudiate and abrogate ruling of board award-
ing compensation and at the same time treat it as effective and binding
upon employer, seeking to hold it liable for lump sum settlement for
failure to comply with mandates of board. U. S. Fid. & Guar. Co. v.
Davis (Tex.)
310
§ 393. TERMINATION OF PAYMENTS.
Compensation awarded partially dependent mother for son's death is not
right vested in her and does not pass over to husband as her adminis-
trator, though he also was awarded compensation, but ceased with her
death. Duffney v. A. F. Morse Lumber Co. (R. I.)..............
§ 3984.
Preference given by act is, in case of insolvent corporation under statute,
confined to amount representing weekly award for the two months pre-
ceding institution of proceedings in insolvency. Steel & Iron Mongers,
Inc. v. Bonnite Insulator Co. (N. J.)
$ 394. NATURE AND FORM OF REMEDY.
Procedure und. act is governed by practice in equity. Sterling v. London
Guar. & Acc. Co, (Mass.).
Under treaties with Austria-Hungary, its consul general may direct suit
under act on behalf of mother, resident of Austria, for death of son-
nonresident allen may maintain action under act for death of son
against employer. Garvin v. Western Cooperage Co. (Ore.).......
$395. WHAT LAW GOVERNS.
A longshoreman, injured on a vessel, whose employment is covered by state
act which makes the remedy thereunder exclusive, is without remedy
in admiralty. The Howell (U. S.)...
One employed to load vessel while moored on navigable waters at dock in
port to be transported to another state is engaged in work of maritime
nature and if injured while so employed does not come within act-one
thus employed, if injured by automobile negigence of employer, is not
limited to seamen's relief under admiralty rules, but may recover full ·
damages at common-law-amendment to Federal Code extending rights
and remedies under state acts to persons injured while in maritime work
will not be given retroactive effect. Soderstrom V. Curry & Whyte,
Inc. (Minn.)
Remedy under state compensation acts is not exclusive, and federal courts
must administer maritime law unaffected by state statutes. Rohde v.
Grant Smith Porter Co. (U. S.)
585
Case which by allegation and proof is brought within statute is controlled
by that act, although its provisions may not have been referred to in
express terms in pleadings. Lusk v. Bandy (Okla.).
1396. JURISDICTION OF COURTS.
Proceedings to determine award for injury in one county, although employee
resided in another county and insurer and employer were foreign cor-
porations, would not be transferred to latter county on order to show
cause, as change of venue statutes do not apply. State ex rel Nelson
v. Dist. Ct. of Wabasha Co. (Minn.)...
Where carpenters were killed while working in vessel, cases did not come
within act and superior court in approving agreements between in-
surer and widows was without jurisdiction and void. Sterling v. London
Gyar. & Acc. Co. (Mass.).....
Servant's personal injuries. occurring not only on navigable waters, but while
at work on vessel, constitute maritime tort of which admiralty court
has jurisdiction-state act is not exclusive and federal courts must ad-
minister maritime law-where servant seeks redress from maritime tort
in admiralty court, rights cannot be barred or affected by state statutes.
Rohde v. Grant Smith Porter Co. (U. S.)....
Jurisdiction of board to approve agreement and of superior court to render
decree in accordance with such approval, necessarily rests upon assump-
tion and fact that agreement concerns employee under act and that,
terms of agreement conform to its provisions-superior court cannot
give validity to agreement void in inception because not approved by
board-full performance of conditions is prerequisite to jurisdiction of
superior court which cannot be changed by consent nor waived by acts
of estoppel. Sterling v. London Guar. & Acc. Co. (Mass.)
Acts provide remedies unknown to common law, incapable of enforcement
by ordinary process and not saved to suitors by admiralty statutes-
common-law jurisdiction of state courts over torts committed at sea is
preserved by statute, but remedies by proceedings in rem can only be
administered in admiralty courts. Georgia Cas. Co. v. American Milling
(Wis.)
§ 397. BOARDS AND COMMISSIONS.
No presumption of jurisdiction in favor of Industrial Commission exercis-
ing limited or statutory jurisdiction. Tazewell Coal Co. v. Industral Com-
mission. (Ills.)
Agreement between insurer and compensation claimant is not approved un-
less board's formal approval is legal and within its jurisdiction
Sterling v. London Guar. & Acc. Co. (Mass.)......
$398. NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPENSA-
TION.
Verbal notice sufficient. Heed v. Industrial Commission. (Ills.)
Where stockholder and director of employer company was near scene of acci-
dent, lifted injured employee, helped carry, and sent to hospital, employer
had sufficient notice under statute. Joseph Halstead Co. v. Industrial
Commission. (Ills.)
Statute requires notice within 30 days, this requirement being jurisdictional.
Barrett Co. v. Industrial Commission. (Ills.)
Claim for compensation must be be unequivocally made within the six months
fixed by statute-where board, in concluding that claim for compensation
was made, determined that claimant probably did not use term "compen-
sation," but said he wanted pay for injury, award could not be predicated
on such guess or probability. Rubin v. Fisher Body Corp'n (Mich.)
Where employee did not immediately notify employer of injuries, obtained
services of family physician, and was taken to hospital, employer was
liable for medical aid received after employer was notified and did not
offer to furnish same-in emergency, injured employee is warranted
in securing medical service at employer's expense without giving notice-
question whether case justifies such action is one of fact. Gage v. Board
of Control Pontiac State Hosp. (Mich.)..
Commission's finding that failure to give notice within time specified did
not prejudice employer, or insurance carrier cannot be sustained where
no reason was shown why notice could not have been given. Combes V.
Gelbel-In re State Indust. Comm. (N. Y.)...
Brothers, beneficiaries, held to have given required notice and made claim.
American Indemn. Co. v. Zyloni (Tex.)..
Claim against named individuals, copartners, using several styles, is not in-
valid because made orally to one of them nor because claim states they
were doing business under auch styles. Heinze v. Industrial Comm. (Ill.). 361
Where employer received immediate notice of accident, kept in touch during
last sickness, had actual notice of death, and shortly thereafter discussed
compensation with widow, and autopsy would not have shown cause of
death, failure to give notice was not prejudicial. Notice to or knowledge
of employer of death is notice to and knowledge of insurance carrier.
Folts v Robertson (N. Y.)...
Requirement for notice of claim within six months, or in event of physical
or mental incapacity, within six months after its removal construed so
that subsequent incapacity during the period will flag statute. Corkin
v. River Raisin Paper Co. (Mich.)..
Employee who does not return to service within six months after injury or
cessation of payment, and who does not within such time claim com-
pensation has waived rights thereto act giving injured employee, who
has returned, eighteen months to make claim cannot be construed as
applying only to those who remain eighteen months in such employment
or as meaning that in case they quit within that time, claims must be
filed within six months of date of leaving. Otis Elevator Co. v. In-
dustrial Comm. (Ill.)....
Proceedings against employer for injury sustained by employee in course of
employment cannot be maintained unless claim made within three months
after accident. Jacobs v. Hamilton Coal & Merc. Co. (Kan.)..
Failure to file claim with commission within one year from date of injury
leaves commission without jurisdiction, although filed less than year
after disability-such failure cannot be disregarded on theory that em-
ployer, by continuing injured servant in employment, is estopped to
plead that claim is barred. O'Esau v. E. W. Bliss & Co. (N. Y.)....
Where employer knew all about accident immediately and within thirty days
authorized payment of doctor's bill, failure to give written notice within
thirty days did not prevent recovery-requirement of written notice
within six months after payments have ceased applies only where there
is continuation of disability-if, after returning to work, injured em-
ployee dies, his beneficiaries are not prevented from asserting claim if
filed within eighteen months after return to employment. Bowman v.
Industrial Comm. (III.)
Where employee attempted to settle by agreement and consented to arbi-
tration, but refused to arbitrate before a committee, and employer re-
fused to arbitrate except before such committee, and employee made
no proper application for appointment of arbitrator, held that action
was maintainable despite such omission. Goodwin v. Cudahy Packing
Co. (Kan.)
MEDICAL EXAMINATION OF CLAIMANT.
Injured woman employee, by refusal to permit injection in kidney for pur-
pose of X-ray photographs does not necessarily forfeit right to com-
pensation. U. S. Fid. & Guar. Co. v. Wickline (Neb.)..
§ 400. PARTIES.
Injured employee, having received award, may be joined as party plaintiff
with employer in suit against party whose tort caused injury-where
employer refuses to join in such suit, employee may maintain suit alone
making employer one of the defendants. Hall v. Southern Pac. Co. (Cal.)
Where watchman killed by burglars, left dependent widow who also died be-
fore compensation was made and administrator of workman's estate sued,
held that action was prosecuted by proper party, that full amount of com-
pensation was recoverable, and that injury causing death arose out of
employment. Smith v. Kaw Boiler Works Co. (Kans.) ...
Administrator of deceased has right to prosecute for and collect award,
employer being protected by requirement that administrator is obligated
as to distribution. G. H. Hammond Co. v. Industrial Commission (II.).. 176
Complaint alleging common-law liability, showing on its face that employee's
employment brought him within act, but omitting to allege employer's
failure to provide required insurance, is defective. Ruddy v. Morse Dry
Dock & Rep. Co. (N. Y.).....
Administrators, suing for damages for negligently causing death of intestate
under Code, made out prima facie case when they stated cause of action
under such statute and were not bound to negative act making remedies
under such act exclusive. Basso v. John Clark & Son (N. Y.)...
Where complaint pleaded under federal act. and proof showed plaintiff not
in interstate commerce, but established case under federal statutes
covering accidents in intrastate commerce, there was no varlance ог
failure of proof requiring dismissal. Archibald v. Northern Pac. Ry.
Co. (Wash.)
Reply of injured servant, plaintiff, held to put in issue defendant's allegation
he had complied with act-where the injuries were received before act
was amended, it was not necessary to allege affirmatively in complaint
that defendant failed to secure payment where case pleaded did not
appear to come within statute. Morris v. Muldoon (N. Y.)..
Allegations that plaintiff insured one of his employees by policy written
under terms of act, held to carry implied allegation that plaintiff was in-
surance carrier entitled to be subrogated to rights of injured employee
against party causing injury. Royal Indem. Co. v. Midland Counties
Pub. Serv. Corp. (Cal.)
Injured servant's complaint is not insufficient for failure to allege defendant
had not elected to come under act. Garvin v. Western Cooperage Co.
(Ore.)
Under undisputed evidence. held court erred in refusing to find injury oc-
curred on one of several roads leading to plant of employer, and that
court erred in refusing to find as fact that employee was injured after
being relieved for day. Parties who base right of recovery on act must
show they are within terms of act. American Indemn. Co. v. Dinkins
(Tex.)
PRESUMPTIONS AND BURDEN OF PROOF.
There is no presumption of dependency of parents of deceased 32 years old;
hardly presumption that they are living, residence being foreign country
Award under act may not be sustained where no evidence of essential
fact of dependency. Pifumer v. Rheinstein & Haas. Inc. (N. Y.)
Burden is on employee to prove claim was made within six months. Heed
v. Industrial Commission. (Ills.)
In proceedings under act before commission, claimant has burden of proof.
Joseph Halstead Co. v. Industrial Commission (Ills.)
Applicant has burden of proof, but evidence sufficient to make reasonable
person conclude applicant was injured while performing duties is suf-
ficient. Swift & Co. v. Industrial Commission. (Ills.)
Where contractor's employee assists with machine or appliance belonging to
contractor, in work of subcontractor or other employer to whom he is
lent, he may become, with his consent, servant of other employer, but
there is rebuttal presumption that in management of machine he remains
servant of general employer. Emach's Case. (Mass.)
On hearing before commission, claimant has burden of proof.
Record Foundry & Machine Co. (Me.).
Burden rests on claimant to prove facts necessary to establish right to com-
pensation, and eldence, though slender, that will satisfy reasonable man
is sufficient-to recover, burden is on widow to prove death was caused
by accident, arising out of employment, and in course of employment.
Westman's Case (Me.)
In determining whether death was suicidal or accidental, legal presumptions
and amount of circumstantial and direct evidence are to be taken into
consideration. Westman's Case (Me.)..
Burden is upon claimant to show injuries arose out of employment. Mar-
shall v. Baker-Vawter Co. (Mich.).....
Persons claiming death benefits under act are bound to bring themselves
within language of act. Drummond v. Isbell-Porter Co. (N. Y.)..
In action for compensation for death, burden of establishing claim is upon
applicant. Chaudier v. Sterns & Culver Lumber Co. (Mich.)...
In absence of statement in writing or written notice that provision of section
of act were not intended to apply, master and servant are presumed to
have accepted and agreed to be bound thereby. Buonfiglio v. Neumann
& Co. (N. J.).....
Testimony based on personal examination of injury, covering not merely
objective symptons but actual inspection, was not incompetent. Heed v.
Industrial Commission. (Ills.)
Testimony rehearsing story of accident as told by decedent to witnesses was
inadmissable hearsay-testimony of decedent's words and gestures when
discovered after injury were admissible only as showing his physical
condition at the time, as part of res gestæ. Mailman v. Record Foundry
& Machine Co. (Me.)..
Testimony by employer and his wife as to statements of deceased employee
is admissible under statute. Perry v. Industrial Acc. Comm. (Cal.)...... 350
Evidence respecting deceased son's intent to send mother the part of wages
remaining after paying board, held admissible as relevant on question of
dependency. Freeman's Case-In re Automatic Time Stamp Co.-In re
Amer. Mut. Liab. Ins. Co. (Mass.)..
Deposition of physician as to servant's injuries, although earsay as to em-
ployer and Insurance carrier who were not parties to proceeding in which
deposition was taken, is admissible. Ocean Acc. & Guar. Corp. v. Indus.
Acc. Comm. (Cal.)...... . . . . . .
Evidence held to show that wife of injured employee notified employer.
G. H. Hammond Co. v. Industrial Commission (Ill.)..
To justify award, greater weight of evidence must be in favor of claimant
upon whom is burden of proof. Joseph Halstead Co. v Industrial Com-
mission. (Ills.)
Where only notice given employer was by injured person at a time he esti-
mated one to two months after accident, there was no evidence to find
notice was given within 30 days. Barrett Co. v. Industrial Commission.
(Ills.)
Board is authorized to draw reasonable inferences from established facts
and circumstances shown by evidence. Nordyke & Marmon Co. v. Swift.
(Ind.)
Must be some competent evidence, however slender, to support award;
speculation, surmise or conjecture. Mailman V. Record Foundry &
Machine Co. (Me.)...
Evidence held to sustain board's conclusion that emergency warranted injured
employee securing medical aid without first notifying employer. Gage
v. Board of Control Pontiac State Hosp. (Mich.).
Liability of state insurance fund same as any other insurance carrier and
established by like proof. Fischer v. Genessee Const. Co. (N. Y.)........ 279
Evidence held to sustain findings of board that employee was mentally and
physically incapacitated from making claim during more than three
months of the six months period for filing claim. Corkin v. River Raisin
· Paper Co. (Mich.)
(2). Relation of parties.
Finding of Board that engineer of crane loaned by contractor did not be-
come servant of subcontractor held supported by evidence. Emach's
Case. (Mass)
Where decedent was employed as gatekeeper on highway, held it was not
shown that he was casual employee. Doherty v. Grosse Isle Tp. (Mich.). 222
Under evidence, held employer was common carrier of express, but not by
steam railway. State ex rel. Gt. North'n Exp. Co. V. Dist. Ct. of
Ramsey Co. (Minn.)
Evidence showing employer's control of mode of work held to support finding
that deceased when killed was not independent contractor-assumed that
statutory definition does not distinguish "employee" from "servant" at
common law as distinguished from independent contractor. Western
Indemnity Co. v. Prater (Tex.)....
Finding that decedent, leaving premises under orders and returning on per-
sonal mission, was still an employee held not against undisputed evi-
dence. American Bridge Co. v. Funck, Indust. Com'r (Iowa)..
(8). Acceptance or rejection of statute.
Evidence held to show employer filing notice of rejection of act had posted
notices in place of business as required by statute. A. T. Willett Co. v.
Industrial Commission. (Ills.)
(4). Injury arising out of and in course of employment.
Applicant has burden of proof, but evidence sufficient to make reasonable
person conclude applicant was injured while performing duties is suf-
ficient. Swift & Co. v. Industrial Commission. (Ills.)
Where injuries were sustained in a fight, evidence held to sustain finding
that altercation grew out of matters connected with work and was not
purely a personal one entirely outside scope of employment. Swift &
Co. v. Industrial Commission. (Ills.)
Under evidence, held employer and deceased employee were under act and
that accident arose out of employment. State ex rel. Gt. North'n Exp
Co. v. Dist. Ct. of Ramsey Co. (Minn.)
Compensation for death of servant not to be allowed unless testimony fairly
gives rise to reasonable inference that death was attributable to injuries
received-not essential to right of recovery that petitioner establish in-
juries as proximate cause of death, it being sufficient if they were pro-
ducing cause-evidence held to sustain finding that death on certain date
was caused by injuries received year and two months before Lundy
v. Geo. Brown & Co. (N. J.)
Finding of board that employee who suffered sunstroke had no opportunity
to escape effects of exposure before collapse, held warranted by evidence.
McCarthy's Case. In re Town of Danvers. In re Employers' Liab. Assur.
Corp. (Mass.)
Where deceased, drowned, was pipe fitter about furnaces in houses on a slip
connecting with river, evidence held not to warrant conclusion that ac-
cident arose out of employment-burden is on applicant to prove that
accident arose out of employment by evidence and not based on con-
jecture or surmise. Wisconsin Steel Co. v. Industrial Commission (Ill.).. 168
Evidence held to warrant conclusion that abscess resulted from injury. G.
H. Hammond Co. v. Industrial Commission (Ill.)....
176
To sustain decree of award, must have been competent legal evidence of
death or disablement, result of accident arising out of and in course of
employment-finding of commissioner that decedent sustained injury
rather than died of disease held supported by evidence-finding that
injury arose out of employment held sustained by evidence. Mailman
v. Record Foundry & Machine Co. (Me.)
To prove accidental death, not necessary to negative every other possibility;
proof need not be direct and positive but by circumstances where cook
fell overboard from wharf to which his boat was moored, evidence held
to sustain finding of accidental death. Westman's Case. (Me.).
Where decedent was employed as gatekeeper on a highway, held under
evidence that he was employed by defendant and was injured in course of
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