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reverse his decree, unless based on such incompetent testimony. Mall-
man v. Record Foundry & Machine Co. (Me.)
Where employee was killed by strikers, it was error to prove by parol the
contents of letter received by deceased from union demanding that he
sign to prevent strike. It was not prejudicial error to admit opinions
that deceased was protecting employer's life and property, where there
was sufficint competent evidence. Baum v. Industrial Comm. (Ill.).... 357
(9). Determination and disposition of cause.
Where testimony taken on reconsideration after appeal from first award has
no bearing on pivotal point, appeal from first award will be considered
though there is no appeal from that made on reconsideration.
In re
Behrens. (N. Y.)
Use of sarcasm, intimidation etc. by deputy commissioner conducting inves-
tigation and examining witnesses, manifesting bias and prejudice, re-
quires reversal of award. In re Vissaggio. In re N. Y. Consol. Ry. Co.
(N. Y.)
Under act, it was error for court, on affirming commission's award, to direct
payment and order execution thereon. Baum v. Industrial Comm. (Ill.).. 36.
On review by certiorari, court has authority only to affirm findings and
'award of commission, or to set them aside and enter decision justified
by law, or remand, but it cannot enter money judgment and order ex-
ecution. Otis Elevator Co. v. Industrial Comm. (Ill.)..
Where manifest injustice would result from weekly payment, district court,
on review of award of weekly compensation, trying case denovo, may
give gross award in case of death of employee having wife and two
children of school age and no earning capacity. Texas Employers' Ins.
Ass'n v. Boudreaux (Tex.)..

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639

In appeal from award of commissioner, district court has authority to hear
as suit in equity and enter final judgment. and should allow such ad-
ditional compensation and "waiting time" as evidence of continuing dis-
ability shows entitled to. U. S. Fid. & Guar. Co. v. Wickline (Neb.).... 618
On appeal from award of board, only findings and conclusions are before
court for review, and in absence of findings upon controlling issues, it
should remand to board instead of itself deciding issues upon evidence.
Reilly v. Erie Ry. Co. (Pa.).. . .
Implied contract for deduction for deceased's tools and supplies in de-
termining wages, may be inferred from conduct of parties and is question
of law for court, if ascertained facts are sufficient and. if not, to be re-
manded to board for finding. Reitmyer v. Coxe Bros. & Co. (Pa.)...... 644
REVIEW OF JUDGMENT OF COURT ENTERED ON AWARD of
BOARD OR COMMISSION.

418.

(1). Nature and form of remedy.

Statutory right to have final judgments in civil actions vacated in practice
is limited to common law proceedings and does not extend to proceed-
ings under act. Sterling v. London Guar. & Acc. Co. (Mass.).....
(2). Decisions reviewable.
Order to circuit court quashing record and remitting case to commission for
further proceedings and not attempting to fix rights of parties, is not
"final order" reviewable by Court. Peabody Coal Co. v. Industrial Com-
mission. (Ills.)
Where claim by widow was voluntarily settled pursuant to provisions of act
and district court approved, held Supreme Court was without jurisdiction
of appeal. Bach v. Interurban Ry. Co. (Iowa)..

(5). Review.

Discretion of district court in compensation award in gross on trial of cause
de nova, on review of award of weekly compensation by board, will not
be disturbed on appeal. Texas Employers' Ins. Ass'n v. Boudreaux
(Tex.)

(6).

Questions of law or fact.
Whether willful misconduct with intent to injure himself, or intoxication was
proximate cause of injury were fact questions for tribunals under com-
pensation act, and where reasonable minds may draw different con-
clusions on evidence, court will not interfere with their findings. Pierce
v. Bekins Van & Storage Co. (Ia.)

Extent of dependency of step brother was for board to decide as question
of fact, and if supported by evidence, court cannot disturb. O'Flynn's
Case. (Mass)..
Review by supreme court is on certiorari only; may not consider the testi-
mony, but is authorized to examine findings and reasons stated in ad-
judications of referee, board, and court below, to determine whether
decision is founded upon proper basis. Murdock v. New York News
Bureau (Pa.)
Under act, where case is heard in district court, where there is competent
evidence sufficient to sustain finding, judgment will not be set aside on
appeal unless clearly wrong. Anderson v. Kiene (Neb.).
Where commission found servant did not come to death by injury in course
of employment, and district court sustained finding, supreme court
cannot interfere if finding is supported by credible and substantial evi-
dence. Youngquist v. Industrial Comm. (Colo.)

(7)

Judgment entered upon the going down of remittitur from Supreme Court,
that defondant Department make such order for compensation to plain-

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708

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tiff employee as will reasonably cover his difference in wage earning
power, held to require award be in the proportion which new earning
power bears to old and not for full difference between old and new.
Parker v. Indust. Ins. Dept. (Wash.)..

$419.

659

PROCEEDINGS TO INCREASE, DIMINISH, OR TERMINATE COM-
PENSATION.

Award of weekly compensation under act is in effect a judgment and cannot
be changed by requiring payment of present value into a special fund
without notice and opportunity of hearing being given interested parties,
nor after giving such notice and opportunity, can it be vacated or modi-
filed by general resolution. Sperduto v. N. Y. C. Interborough Ry. Co.
(N. Y.)
Where evidence, on petition for permission to cease payments to injured
employee, tends strongly to prove employee has recovered, his refusal to
submit to objective examination demands suspension of right to com-
pensation. Rose v. Desmond Charcoal & Chem. Co. (Mich.)
Where injured employee and employer entered agreement, approved by board,
and employer's petition to set it aside was denied by board and resump-
tion of payments ordered, appeal cannot raise question that court has
sole power to enforce award-such agreement cannot be set aside at in-
stance of employer and insurance carrier merely to enable subsequent
contentions that injury did not arise out of employment. Home Pack-
ing & Ice Co. v. Cahill. (Ind.)

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Where injured employee has so far recovered as to be able to work for an-
other employer, order of board, refusing to reduce compensation was un-
warranted. Moshinski v. Kay Salt Co. (Mich.)
Upon petition before board to reopen case, it was proper upon due notice
and opportunity to present testimony, not to limit to matter of reopen-
ing but to consider right to additional compensation-employee who has
given settlement receipt in full, has burden of showing he is entitled
to reopen case and to further payment-employee's allegation of duress,
fraud and misrepresentation inducing his signing of acknowledgement re-
ceipt held not supported by evidence-evidence held to support findings
that injuries were attributable to accident in question. Weidner V.
Northway Motor Mfg. Co. (Mich.)
Insurance carrier, assenting to award by admitting injury was cause of ac-
cident not permitted review upon appeal-Commissioner's power to change
award is not arbitrary but judicial discretion to be exercised only in
interest of justice, upon new evidence of clear mistake of fact, cumu-
lative evidence bearing negatively upon question of fact already amply
proved being insufficient-where annulment of award was based on opin-
ions after close of hearing, by misinformed physians who had not ex-
amined employee, and upon application of insurance carrier who had ad-
mitted injury was cause of accident, annulment was arbitrary and not
authorized. Fischer v. Genessee Const. Co. (N. Y.)
Where injured employee was not employed by year, but for short definite
period at $3 per day, board properly determined after agreement between
commissioner of insurance and employee for compensation at $10 per
week that average weekly wage was less than $4-where board approved
such agreement, so long as the matter was depending before it, it had the
power subsequently to limit payments to average weekly wage, Kirchner
v. Michigan Sugar Co. (Mich.)....
Where injured employee refused to attend meeting of compensation com-
mittee organized by employer, and to accept their award, subsequently
bringing action to review and cancel the award on ground of its in-
adequacy and his increased subsequent incapacity, held that court
had jurisdiction to review and consider competent evidence on points
in complaint-evidence held to support court's judgment that such award
was grossly inadequate, although committee had acted in good faith,
and awarding lump sum. Villalobos v. Cudahy Packing Co. (Kan.).... 385
€ 420. COSTS, FEES, AND EXPENSES.

Any liability of employer to attorney of injured employee exists under general
statute as to attorney's lien-where claim of injured employee was set-
tled without action or proceeding and the money paid, employee's at-
torney could have no lien on money-notice by employee's attorney to
employer is not notice to insurer. Kratz v. Holland Inn (Iowa).....

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