employment-where decedent suffered accidental injury to foot, held
under evidence that death resulted from accident. Doherty v. Grosse
Isle Tp. (Mich.)..
In action on death of metal polisher employed by automobile company, held
there was some evidence accident arose out of employment. Zoladtz v.
Detroit Auto Spec. Co. (Mich.)....
Evidence held to support determination of commission that death resulted
solely from intoxication. Trouton v. M. J. Sheehy Ice. Co. (N. Y.).
Whether remote cause of death was injury from lifting; evidence held to sus-
tain award in view of presumption under act. Folts v. Robertson (N. Y.). 429
Decision of board that woman was entitled to compensation for husband's
death a8 result of accident in course of employment, held supported
by evidence that bruised body was found under wheels of his wagon,
that he was sober, and report of coroner's physician stated death
probably due to injuries. Leary v. McIlvain (Pa.)..
Award by referee, confirmed by board and lower court, will be affirmed
where evidence supports findings that lineman's fall and injuries were
followed by pneumonia causing death-that physician examining such
lineman failed to discover fractured rib, did not detract from weight
to be given undisputed fact that he received chest blow when he fell,
followed by continuous pain resulting a weak later in death from
pneumonia. Murdock v. New York News Bureau (Pa.)..
Evidence held to show teamster's injury arose out of employment.
Industrial Comm. (Ill.).
Where boy was employed as water carrier on building under construction,
evidence held to afford inference for board to draw that fall and death
resulted from accident while in master's business. Gabriel v. A. J. Smith
Const. Co. (Mich.).
In action for compensation for death caused by ashes found in stomach of
one employed in removing ashes from pit under burner, award will be
vacated where inference that ashes were taken into system by decedent
with suicidal intent is as least as reasonable as that they found entrance.
accidentally. Chaudier v. Sterns & Culver Lumber Co. (Mich.)...
Commission is not bound to decide, in accordance with opinion evidence
as to speed at which employee drove auto by overturning of which he
was killed; it is its duty to pass on evidence and decide fact-circum-
stantial evidence such employee was exceeding speed limit held insuffi-
cient to justify annulling of Board's award as unsupported by evidence.
U. S. Fid. & Guar. Co. v. Indust. Acc. Comm. (Cal.)
Findings of commission employee was injured in course of employment by
blow cn neck causing paralytic stroke, held supported by evidence of
attending physician. Murray City v. Indust. Comm. (Utah).
(5). Dependents.
Findings of trial court that decedent met death while not engaged in course
of employment but when furthering personal interests held sustained by
evidence. State ex rel Niessen v. Dist. Ct. of Ramsey Co. (Minn.)
Evidence held to support findings of board that earnings of decedent's step-
mother were merely sufficient for her own support and that decedent,
feeling obligation, made certain monthly payments for support of half
brother. O'Flynn's case. (Mass.)
Testimony of deceased's brother as to letters received from parents in Italy
stating their dependency upon remittances sent by brothers held no evi-
dence of dependency upon deceased-so called certificates of "mayor"
and "official" of town in Italy as to dependency held insuficient. Pifu-
mer v. Rheinstein & Haas, Inc. (N. Y.)....
In claim for compensation for death of minor daughter, evidence held_not
to show mother, claimant, dependent on earnings of decedent. Frey
v. McLoughlin Bros., Inc. (N Y.)
Finding of commission that mother receiving $50 per month from deceased
was partially dependent to extent of 56% of total dependency held un-
supported by evidence. Rock Island Bridge & Iron Works v. Industrial
Commission.
Evidence held to support finding that claimant was living with deceased
as wife at time of death and dependent. Doherty v. Grosse Isle Tp.
(Mich.)
In absence from evidence that deceased son either wholly or in part supported
parents during year prior to accident, award to parents will not be
sustained. Profeta v. Retsof Mining Co. (N. Y.)...
Statement of "officer in charge" as to birth of decedent and claim of de-
pendency by alleged parents is not competent evidence, certified copy of
record being essential. Bonnano v. Metz Bros. Co. (N. Y.).
Evidence held insufficient to show that wife claiming compensation for death
of husband, had deserted him. James Black Dry Goods Co. v. Iowa
Indust. Com'r (Iowa)....
Evidence held insufficient to show deceased employee's parents living in
foreign country were dependent upon him-necessary to establish by com-
petent evidence that claimants were dependents. Bonnano v. Metz Bros.
In action by parents residing in foreign country for death of son, evidence
held sufficient to show he had contributed to support for one year prior
to accident. Drummond v. Isbell-Porter Co. (N. Y.).
Under evidence, held that injury was ascertainable by objective examination
within act. Goodwin v. Cudahy Packing Co. (Kan.)...
Held that sum allowed for medical expenses was supported by evidence.
Villalobos v. Cudahy Packing Co. (Kan.).....
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.).....
Evidence of insurer under act, held sufficient to show lawful claim had been
made by injured employee and paid by insurer to entitle it to be subro-
gated to employee's rights against party causing injury. Royal Indem.
Co. v. Midland Counties Pub. Serv. Corp. (Cal.).....
Averments in motions to take depositions are not evidence and cannot be taken
as true. Perotti's Case (Mass.)..
Court has by implication power given board to approve agreed lump sum
settlement and to review, terminate, diminish or increase award. U. S.
Fid. & Guar. Co. v. Davis (Tex.).....
409.
Whether injury is accident is mixed question of law and fact which becomes
question of law when facts are ascertained or determined. Westman's
Case (Me.)
410%.
Finding that evidence fails to prove employee died as result of accident
arising out of employment is in effect finding he did not die from such
cause and cannot be set aside. State ex rel. Rinker v. Dist. Ct. of Pen-
nington Co., 14th Jud. Dist. (Minn.)..
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Form of judgment proposed by employee embodying provisions of act held
proper with modifications-judgment should provide for issuance of exe-
cutions to collect award. U. S. Fid. & Guar. Co. v. Davis (Tex.)....................
411%2.
Where in course of trial, it was claimed that injured employee held ankle
stiff purposely and, over defendant employer's objection, two jurors per-
sonally examined ankle, and court refused defendant's request that jury
be discharged, held that this was within discretion of court, that there
was no error in denying new trial, nor abuse of discretion in such refusal.
Mischlich v. Morris & Co. (Kan.)..
§ 412. — APPEAL OR OTHER PROCEEDING FOR REVIEW.
Findings of fact made by trial court in proceedings under Act are not con-
clusive but will be reviewed on certiorari to extent of determing whether
supported by evidence-question presented on such review is of law and
in decision court will be guided by general rule-if reasonable minds
may reach different conclusions, question of sufficiency of evidence be-
comes one of fact, and findings of trial court will be sustained. State ex
rel. Niessen v. Dist. Ct. of Ramsey Co (Minn.)
Finding that evidence fails to prove employee died as result of accident
arising out of employment is in effect finding he did not die from such
cause and cannot be set aside. State ex rel. Rinker v. Dist. Ct. of Pen-
nington Co., 14th Jud. Dist. (Minn.).
On appeal, findings of fact in primary court are conclusive, if there be any
evidence to support. Jenson v. F. W. Woolworth Co. (N. J.).
Trial court's finding of fact. based upon sufficient though conflicting testi-
mony, that claim was not made within three months, is conclusive-
errors concerning admission and exclusion of evidence which relate to
alleged injuries for which no action can be maintained need no attention
on appeal. Jacobs v. Hamilton Coal & Merc. Co. (Kan.)..
Record, being confessedly to be treated as if no motion for new trial had been
fled, presents neither general findings nor ascertained and agreed facts,
claims touching excess of judgment, failure to submit to surgical opera-
tion, and objective character of injury, involving examination of con-
flicting evidence, cannot be considered. Close v. Lucky O. K. Mining Co.
(Kan.)
Finding that lime was splashed in mason's eyes by fellow workman, in-
juring both eyes, held sustained by evidence. Zinken V. Melrose
Granite Co. (Minn.)
Case under act, heard before referee, without notice to insurance carrier and
without its being represented or given opportunity for cross-examination
and introduction of testimony, should be reopened unless there is no
possibility of changing result-insurance carrier, not notified of and not
represented at the hearing, is not entitled to reopening on ground that
deposition introduced was inadmissible as hearsay, where i did not offer
to rebut the matters therein contained. Ocean Acc. & Guar. Corp. v.
Indust. Acc. Comm. (Cal.)....
477
Commissioner had power to take notice of scientific authority and data in
reaching conclusion. Chiulla de Luca v. Board of Park Com'rs. City of
Hartford (Conn.)
REPORT AND FINDINGS OR AWARD.
Board must find as legal basis for award that claimant was employee, that
injury was received by accident, that it arose out of and in course of em-
ployment, its character and extent, and claimant's average weekly wage.
Muncie Foundry & Machine Co. v. Thompson. (Ind.)
After hearing by full board, an award made and signed by only a majority
is binding. Root Dry Goods Co. v Gibson (Ind.).
Commission need not formulate findings except in case which are appealed.
In re Behrens. (N. Y.)
Though there is no contest between dependents as to receipt of compensation,
where payment is not voluntary and commission must determine com-
pensation, it must also designate those entitled to same. Paul v. Indus-
trial Comm. (Ill.)
Award against employers using two different partnership names is not ren-
dered invalid by the addition of descriptive partnership name. Heinze v.
Industrial Comm. (III.)
361
Order of board awarding compensation to injured employee in accordance
with agreement between him, employer, and insurer, held inconsistent
with return of board of writ of certiorari sued out by employer and in-
surer to review reciting that order meant case should not be finally
closed, but be held open for developments. Rudiski v. Detroit Wire
Spring Co. (Mich.)..
That award was made by only one of commissioners does not affect validity
where made_from_schedule regularity adopted by whole commission. Foster
v. Indust. Ins. Com. (Wash.).
Contention that there was no evidence to sustain referee's conclusion that
death was result of accident, raised question of law which board had
power to d termine under ac. upon consideration of legal adequacy of
testimony taken before referee. Murdock v. New York News Bureau
(Pa.)
Board's award of sum per week for specified period and fixing amount already
due at time of award, must be considered not lump sum award
but weekly payment award, reviewable and not res adjudicata. Shaffer
v. D'Arcy Spring Co. (Mich.)..
Award for employee's death from sunstroke is not justified where commission
does not find he met death through exposure to heat more excessive than
that to which others were subjected or through special hazard of em-
ployment. Brezzenski v. Crenshaw Engineering Co. (N. Y.).....
Where defendant railroad contended injury occurred while employee was
engaged in interstate commerce, referee should have made finding on
such question-where referee concluded it was immaterial and failed
to find, board upon appeal should have held conclusion error and either
made findings upon hearing de novo or sent record back to referee for
finding. Reilly v. Erie Ry. Co. (Pa.).
Board cannot reverse award upon appeal from referee's findings of fact with-
out hearing de novo. Tigue v. Forty Fort Coal Co. (Pa.).
Notice to or knowledge of insurance carrier of agreement for lump sum
settlement presented to board for approval, is not contemplated by act
and want of knowledge is not ground for vacating order of settlement.
Hartsock v. Long (Ind.)
Hearing de novo by board is essential whenever intention is to disturb find-
ings of fact, and board considering report of referee had no power to
substitute own inferences and deductions for those upon the record.
Where referee found employee's death in course of employment was due
to rupture of aorta caused by vomiting probably due to gases, smell or
fright, board without hearing de novo had no power to reach different
conclusions or reverse referee on theory of his error in law in drawing
conclusions different from those which would have been made by board.
Clark v. Lehigh Valley Coal Co. (Pa.)
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On appeal by either party from award of commissioner, district court of
county where employee could sue employer at time of injury, is proper
court to which case should be submitted. Globe Indemnity Co. V.
Larson (Neb.)
Return to writ of certiorari commanding Commission to certify to court com-
plete record of proceedings in a decision must show that notice was given
employer and must contain testimony upon which decision was based
Tazewell Coal Co. v. Industrial Commission. (Ills.)
Circuit court may review by certiorari without necessity of review of decision
of arbitrator by Commission. Jakub v. Industrial Commission. (Ills.) .. 158
Decision of commissioner of arbitration committee on fact in controversy is
reviewable by certiorari. James Black Dry Goods Co. v. Iowa Indust.
Com'r (Iowa)
Question whether actions amounted to wilful misconduct goes to Commission
and is reviewable on certiorari. Hyman Bros. Box & Label Co. V.
Industrial Acc. Comm. (Cal.)..
(8%). Decisions reviewable.
Notice sent by commission to self-insurer under statute, requiring present
value of an award of weekly compensation be paid into special fund
under act, pursuant to a general resolution of the commission, is not an
award or decision of the commission within act, and is not appealable.
Sperduto v. N. Y. C Interborough Ry. Co. (N. Y.)
(3%). Right of review.
Annulment of award by commission, where based upon opinions of physicians
not part of record at hearing, after hearing was closed, without knowl-
edge of claimant, opportunity to cross-examine or be heard, was error.
Fischer v. Genessee Const. Co. (N. Y.)
Insurer which voluntarily contested claim of decedent's brothers was not
bound by board's final award and has appeal where board did not direct
payment to brothers nor find them beneficiaries but merely fixed award
and directed payment to "legal beneficiaries" and where there was no
agreement to be bound by action of board. American Indemn. Co. v.
Zyloni. (Tex.)
(3%). Proceedings for appeal or other form of review.
Though no notice of filing of award was given and notice that award had
been made contained no copy thereof, where appeal was taken, com-
mission cannot complain of own omission. In re Behrens. (N. Y.)
(4.) Presentation and reservations of grounds of review.
Where claim that decedent was casual employee was concededly not prop-
erly raised before board nor passed upon, question is not properly before
court for review. Doherty v. Grosse Isle Tp. (Mich.)
Where claimant, though attention was called to depositions, chose to go before
single member of board without asking for taking of deposition, ques-
ton whether there was unreasonable refusal by board to make such
request, is not presented. Perotti's Case (Mass.).....
Commission has power after appeal to open proceedings and receive further
testimony and should then make and file another award or decision,
and appeal should be taken therefrom. In re Behrens. (N. Y.) ........ 282
(5). Trial or review.
Agreement and order for lump sum settlement will not be set aside and
vacated in absence of showing fraud, mistake or gross irregularity.
Hartsock v. Long (Ind.)....
Findings of essential fact in favor of claimant by chairman of commission
without proper evidence is error of law reviewable by court. Mailman v.
Record Foundry & Machine Co. (Me.)
(7). — Questions of fact.
Questions of dependency within act and its extent are questions of fact and
if evidence tends to sustain, courts cannot interfere with commission's
decision-finding of commission that employee's mother was partially de-
pendent upon him, a question of fact, held supported by evidence and not
reviewable. Rock Island Bridge & Iron Works v. Industrial Commission.
(Ills.)
Objection of insufficiency of evidence to support finding of commission will
not be sustained where some competent evidence supports each ultimate
fact upon which award is based. Root Dry Goods Co. v. Gibson. (Ind.)
Findings of commission as to date of filing claim could not be reviewed or
set aside on question of fact where justified by evidence and personal
examination, award by commission for injury could not set aside by court
as to amount or extent of injury. Heed v Industrial Commission. (Ills.)
Finding of commission will not be set aside by court if warranted by evi-
dence. Swift & Co. v. Industrial Commission. (Ills.)
Where evidence fairly tends to support, decision of Board will not be reviewed
by court-court has no right to pass upon the preponderance of evidence
regardless of mistakes of commission-in determining whether evidence
sustains finding of commission court will reject testimony contrary to
known natural law but mere improbability or repugnance to other evi-
dence does not authorize court to say it should have been disregarded.
Joseph Halstead Co. v. Industrial Commission. (Ills.)
Where evidence supports finding of board on question of fact, court cannot
set finding aside. Emach's Case. (Mass)
Where circumstances of accident were known to employer or agent and where
commission found that notice was given, supported by evidence, it is
conclusive upon appeal. Swift & Co. v. Industrial Commission. (Ill.). 163
Where evidence tends to show notice was given, award of commission will
not be disturbed by court despite opinion that finding was contrary to
weight of evidence. G. H. Hammond Co. v. Industrial Commission. (Ills.) 176
Chairman of commission is trier of facts and his decrees, in absence of fraud,
are final-court will review his reasoning as to effect of or inference
from evidence, but in absence of fraud will not review findings as to
credibility and weight of evidence-if state of facts is shown to be more
consistent with his findings than any other theory, supported by infer-
ences from acts, appeal cannot be sustained. Mailman v. Record Foundry
& Machine Co. (Me.)
........ 205
To make successful challenge on appeal of finding of commissioner on ques-
tion whether injury arose out of employment, must be shown as question
of law, whether there was evidence before commissioner on which deci-
sion may stand so firmly as to make it final. Westman's Case. (Me.).. 218
On a matter of fact, conclusion of board is final and cannot be reversed un-
less quite unsupported by evidence. Amodio's Case. In re John S. Lane
& Son. In re Royal Indemnity Co. (Mass.)
Where decedent was employed as gatekeeper on highway, held that court on
appeal could not say that finding of board that accident arose out of
employment was without competent evidential support. Doherty V.
Grosse Isle Тр. (Mich.)
It is not province of court on appeal from order of commission refusing
award by reason of intoxication, to consider. the facts, except in deter-
mining questions of law. Trouton v. M. J. Sheehy Ice Co. (N. Y.)
Weight to be given hearsay evidence is for commission-commission's finding
that relation of employer and employee existed is conclusive. Perry v.
Industrial Acc. Comm. (Cal.)..
Findings of fact by commission, having competent supporting testimony, are
conclusive. Industrial Comm. v. Johnson (Colo.)..
Finding by commissioner as to existence of relationship of employer and em-
ployee and as to whether injuries arose out of employment, erroneous
only because against weight of evidence, will not be set aside in certiorari
proceedings as in excess of jurisdiction. American Bridge Co. v. Funk,
Indust. Comm'r (Iowa.)..
Questions of commission's jurisdiction may be reveiwed and weighed to de-
termine whether it has jurisdiction to apply act in given case-whether
or not employer has elected to operate under act is question of fact.
Paul v. Industrial Comm. (Ill.)..
Whether employee, shot by another, received injuries within employment or
by voluntary act of assailant, held question of fact for board. Marshall
v. Baker-Vawter Co. (Mich.)!.
On certiorari to board, court will not review finding of fact nor weigh evi-
dence where there is evidence to sustain facts. Shaffer v. D'Arcy Spring
Co. (Mich.)
Award for permanent partial disability from loss of finger by amputation at
distal joint, an injury not specified in act, made according to schedule
adopted by commission, held not a capricious and arbitrary award re-
viewable on appeal. Foster v. Indust. Ins. Comm. (Wash.)...
Finding by referee and board that workman at time killed was employee
and not independent contractor, is conclusive and not reviewable on
appeal. Belmonte v. Connor (Pa.)..
Decision of board is final on, questions of fact as to extent of, dependency
where no presumption applies, and is not open to revision. Perotti's Case
(Mass.)
Award of commission will be affirmed on appeal where there is evidence to
support finding upon which based. Abromowitz v. Hudson View Const.
Co. (N. Y.)..
Finding of fact by referee, approved by board, to effect that deceased work-
man was engaged in course of employment at time of fatal accident,
will not be reviewed by court. Gallagher v. P. M. Walton Mfg. Co.
(Pa.)
In action for death of section hand from poison ivy while cutting weeds on
right of way, where there is evidence to sustain finding of commission
that deceased was not engaged in interstate commerce, it will not be dis-
turbed. Plass v. Central New Eng. Ry. Co. (N. Y.).
Circuit and Supreme Courts can only pass on questions of law and cannot
reverse award of commission for insufficiency of evidence, unless there
was no competent evidence in record to support. Spiegel's Housefurnish-
ing Co. v. Indust. Comm. (Ills. ).
Amount contributed by deceased minor employee to partially dependent
mother during 12 calendar months preceding injury and death, held
question of fact on which finding of board is final. Freeman's Case-
In re Automatic Time Stamp Co.-In re Amer. Mut. Liab. Ins. Co.
(Mass.)
Board is trier of facts, and it is not for court to analyze, discuss or pass
upon the arguments of counsel in support of respective theories as to how
deceased was killed, if facts give opportunity for board in its discretion
to infer death resulted from accident in course of employment. Gabriel
v. A. J. Smith Const. Co. (Mich.)..
Question whether defendant railway company and plaintiff at time of injury
were engaged in interstate commerce, when testimony raises issue of
fact, is for jury-where record shows sufficient testimony that both
plaintiff and defendant were so engaged to authorize submission to jury,
held court committed no error in overruling motion for directed verdict.
St. Louis & S. F. Ry. Co. v. Fraser (Okla.)...
Finding by board that employee died of natural causes and that there was
no evidence there had been "any accident at all" is conclusive upon
court on appeal. McGurrin v. Hudson Coal Co. (Pa.)..
Appeal to superior court from finding and award of commissioner is original
application invoking exercise of judicial power and if finding and award
are within his powers and not unreasonable, his decision must stand-
finding of commissioner that in case of thunderstorm there is a greater
danger in open or under tree than in house must stand as consistent
with evidence and not contrary to reason. Chiulla de Luca v. Board
of Park Com'rs City of Hartford (Conn.)..
Finding of board against employer's contention deceased
was engaged in
interstate commerce is conclusive on court of common pleas. Hancock
v. Phila. & Read'g Ry. Co. (Pa.)..
In suit to review award of commission, it must be to review error of law
and not of fact. Raulerson. State Industrial Comm. (Okla.)...
(8). Harmless error.
Allowance of hearsay evidence by commissioner does not require court to
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