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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