Mere fact that parent receives money from son and expends it is not alone
sufficient to establish "dependency", but necessity for contribution must
also be established.-Award to mother for death of minor child on
ground of dependency must be for her support.-Award to mother of
minor employee on ground of dependency held not warranted; it ap-
pearing that husband and father was able to work and earned suffi-
cient to support his family. Kelley v. Hoefler Ice Cream Co. (N. Y.).... 260
Test of dependency is whether contributions made by deceased to dependents
were necessary and needed to maintain claimants in station of life to
which they had been accustomed.-Occasional gift or contribution, made
for convenience ar pleasure of donor, does not authorize inference of
"dependency".-Commission held justified in finding that parents were
not "dependents" of son. Hancock v. Industrial Comm. (Utah.)....... 314
Sister who relied on contributions to support held "dependent"-reliance on
contributions is test of dependency. Driscoll v. Jewell Belting Co. (Conn.) 345
Compensation for death of servant is neither community nor separate prop-
erty of deceased and is payable directly to dependents Texas Employ-
ers' Ins. Ass'n v. Boudreaux (Tex.)
Compensation to mother and child need not be apportioned.
Portland Cement Co.. (Ind.)

435

Surviving father claiming compensation by reason of
held "dependent" within statute. Heinzelman v.
Port of New Orleans, (La.)

Riggs v. Lehigh
death of minor son
Board of Com'rs of

380

531

Child entitled to compensation though adopted after father's death. Em-
players' Mut. Ins. Co. v. Indust. Comm. (Colo.)..
Held, that parents of minor son, living with them regularly and giving
wages to mother to be used in paving household expenses, are his par-
tial dependents, even though father's earnings would have been sufficient
to maintain family if they had not been expended in purchase of house
which it occupied. Pushor v. American Ry. Exp Co. (Minn.)..
Test of "dependency" is not whether members of family claimed to be de-
pendent could support life without contributions of decedent, but whether
they depended on him for part of their income or means of living.
Kostamo v. H. G. Christman Co. (Mich.)

§ 389. SUBROGATION TO RIGHTS OF INJURED EMPLOYEE.
Dependents are chargeable with judgment for damages against wrongdoer.
Kabel v. Lane Engineering Co. (N. Y.)

Injured employee's election to take compensation does not preclude employer
from suing wrongdoer, in name of employee, providing that employer
who pays compensation shall be"subrogated "to employee's rights
against third person. Davis v. Central Vt. Ry. Co. (Vt.).

Act effectual to assign cause of action under state law.-Act ineffectual to
assign cause of action for death under law of sister state Anderson v.
Miller Scrap Iron Co. Wis.).....

Notice held, essential to jurisdiction of commission.

dust. Comm. (IL)

492

573

544

121

328

333

Ridge Coal Co. v. In-

363

Graham

575

Metro-

567

Subrogation held not barred by employer's concurrent negligence.
v. City of Lincoln (Neb.)
Wrongdoer's liability held determinable before payment of award.
nolitan Milk Co. v. Minneapolis St. Ry. Co. (Minn.).
Injured employee entitled to compensation for injuries by third party, cannot
by agreement not to sue third party deprive employer or his insurer of
right of subogation to employee's right to recover damages against third
person. Renner v. Model Laundry, Cleaning & Dyeing Co. (Iowa.)...... 818
Master who has not paid compensation cannot recover for injuries to servant.
Henderson Telephone & Telegraph Co., Inc., v. Owensboro Home Tele-
phone & Telegraph Co. (Ky.)..

833

Where employee brings action against negligent third person for benefit of
insurer entitled to subrogation, issues involved are same as in ordinary
action of tort between parties who do not sustain relation of employer
and employee. Cullicut v. Burrill (Me.)
Employer's recovery against wrondoer not limited to compensation paid.
Bethlehem Steel Co. v. Variety Iron & Steel Co. (Md.)..
Employer who has paid compensation to employee recovering judgment against
. negligent third person is entitled to be subrogated to employee's right in
judgment to amount of compensation paid. Dailey v. Sovereign Camp,
W. O. W. (Neb.)

§ 3912. PENALTY FOR DEFAULT. OR DELAY.

Insurers against liability of employer held not liable for attorney's fees by
reason of refusal to pay claim until it was established in court of com-
petent jurisdiction. Southern Surety Co. v. Nelson (Tex.)..

164

Held, that reasonable controversy existed between employer and employee
as to liability for compensation, and that employer is not liable for pen-
alty added for waiting time for delinquent payment. Swift & Co. v.
Prince (Neb.)
... ... ་ ་ ་ ་ ་ ་ ་ ་ ་

Violation of law not punishable as misdemeanor under penal law. People v.
Donnelly (N, Y.)

392

# 393.

393%.
393.

AUDIT OF CLAIMS INCURRED OR PAID BY BOARDS OF
COMMISSIONS,

TERMINATION OF PAYMENTS.

PRIORITIES.

MEDICAL ATTENDANCE AND SERVICES.
Duty to furnish necessary medical services to injured employee falls primar-
ily on employer and if he refuses employee's request for such aid, or
neglects to furnish proper service, employee may select his own physi-
cian. Feldstein v. Buick Motor Co. (N. Y.).

Act did not give to physician or surgeon who furnished medical treatment
to injured a right of action for value thereof against employer who had
not requested or consented to furnishing of treatment by such physi-
cian or surgeon.-Employer cannot be held liable for treatment in ab-
sence of finding that he either consented thereto or that he refused or
was unable to furnish needed treatment. Beach V. Gendler (Minn.)....
Employer, though member of Employers' Insurance Association, who en-
gages physician for injured employee, may become liable for physician's
compensation. Huddleston v Tex. Pipe Line Co. (Tex.).

# 394.

(C) PROCEEDINGS.

6:1
874

118

66

305

NATURE AND FORM OF REMEDY.
Ordinary rules of procedure, except so far as modified by act, apply to pro-
ceedings under act. Kelley's Dependents v. Hoosac Lumber Co. (Vt.)... 445
Whether party has agreed to pay or receive compensation is not determin-
able in suit at equity. Sullivan Machinery Co. v. Stowell (N. H.).
394. ABATEMENT OR SURVIVAL.
1395. WHAT LAW GOVERNS.

731

Employee directing moving of coal car in yards held not engaged in inter-
state commerce. Pullman Car Lines v. Riley (Del.).
Switchman cutting car from interstate train is engaged in "interstate com-
merce". Midwest Nat. Bank & Trust Co. v. Davis, Dir. Gen. of R. R's
(Mo.)
Board may award under act to injured employee of railroad while it is
under Federal control. Pullman Car Lines v. Riley (Del.)..

684

715

684

# 396. JURISDICTION OF COURTS.

Justice court did not have jurisdiction to try issue of lump sum settlement by
insurer with injured employee; amount involved exceeding jurisdiction
of court. Under general jurisdiction of courts of state they have no
power to decree lump settlements in favor of injured employees under
act. Employers' Indemnity Corp. v. Woods (Tex.).....
Petition held to, show jurisdiction in district court. Home Life & Accident
Co. v. Jordan (Tex.)

.......

397. BOARDS AND COMMISSIONS.
Commission is without legal authority to enforce physician's claim against
employer furnishing treatment where claim is based solely on agree-
ment with employer and is not part of injured employee's claim for
compensation. Feldstein v. Buick Motor Co. (N. Y.)
Commission's authority is limited to that granted it by act. Centralia Coal
Co. v. Indust, Comm. (Ill.)

Provision that Board shall prepare and furnish on request free of charge
requisite blank forms, does not impose duty of mailing or transporting
such forms. Wright v. Weil Bros. & Co. (Ind.).
Commissioner is authorized to determine cause of death. Flint v. City of
Eldon (Iowa.)

290

428

118

26

215

382

Board is not a court, but an administrative board where interested parties
may reach amicable adjustments quickly, by way of compromise. Poe
v. Continental Oil & Cotton Co. (Tex.)

3972. REPORTS OF ACCIDENT.

§ 398. NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPEN-
SATION.

Limitation provision held bar to physician's suit. Beach v. Gendler (Minn.)
Claim for compensation essential to jurisdiction.-Where it did not appear
that payments of compensation had been made voluntarily, making of
claim within six months after accident could not be waived by offers of
settlement, made during six months, by payment of part or all of

439

99

claimant's medical expenses for first 14 days of disability, nor by ad-
mission of defendant insurance company that it was liable for compen-
sation.-Question of failure to make claim within six months after injury-
was seasonably raised when presented before Commissioner of Indus-
tries.-Payments of medical expenses did not constitute "payments of
compensation made voluntarily". Provision that want of or delay in
giving notice of injury to empolyer as soon as practicable thereafter shall
not be bar to proceedings if it is shown that employer had knowledge of
accident or had not been prejudiced by such delay or want of notice ap-
plied only to notice of injury and does not dispense with necessity of
claim for compensation within six months after accident. Petraska v.
Nat'l Acme Co. (Vt.)

"Injury" does not mean date of accident but date when condition arose which
first entitled injured person to compensation. Esposito v, Marlin-Rock-
well Corp. (Conn.)
Year's period of limitation starts to run in favor of employer and carrier
from last payment of compensation.-There is no limitation of time on
right of review Board.-Where employer, in addition to sum allowed un-
der act paid claimant gratuity with each installment, petition for com-
pensation within one year from time of last payment was within time
prescribed. Chase v. Emery Mfg. Co. (Pa.)...
Provision for timely claim is mandatory and must be complied with to give
commission jurisdiction-letter appealing for aid held not claim. Ideal
Fuel Co. v. Indust. Comm. (III.)
Notice of injury to eye held not given by claimant. Conley V. Upson Co.
(N. Y.)
Limitation of actions for death is inapplicable to compensation proceeding.
Bennett v. Page Bros, (N. Y.)

324

350-

416

356

607

611

650

Bar to compesation claim held waived-objection to failure to file claim with-
in year after accident may be made at any time before award is made,
and waiver of bar does not depend on whether or not objection is taken
within reasonable time. Kraemer v. Mergenthaler Linotype Co. (N. Y.). 621
Where claim of state insurance fund in case of accidental death of employee
leaving no dependents was not presented within one year after death, it
was barred. Inter-Urban Const. Co. v. Indust, Comm. (Utah)
Act limitation held inapplicable to "subrogated" employer's claim against
wrongdoer for workman's death. Star Brewing Co. v. Cleveland, C., C.
& St. L. Ry. Co. (U. S.)..
Commission cannot waive statute of limitations as respects claim against
State Insurance Fund. Spring Canyon Coal Co. v. Indust. Comm. of Utah
(Utah.)

$398.
1 399.

ARBITRATION.

MEDICAL EXAMINATION OF CLAIMANT.
Refusal of injured to submit to surgical operation was not refusal to accept
or receive" medical treatment where in refusing to do so he was act-
ing under advice of skillful physicians who were treating him. Western
Indemnity Co. v: Milam (Tex.)

$400. PARTIES.

Where employee of assenting employer was injured through negligence of
third person. and settlement was effectd between employer, employee,
and insurer, action brought for benefit of insurer was properly instituted
in name of employee. Cullicut v. Burrill (Me.)..
Fact that suit is in name of employer for benefit of insurer and injured em-
ployee, if not in strict compliance with statute, is immaterial, since act
expressly directs application of amount of recovery. Bethlehem Steel Co.

v. Variety Iron & Steel Co. (Md.)

$ 401. PLEADING.

Complaint against employer must allege facts which bring employment
within exceptions to act to be valid.-Complaint for injuries to en-
ployee arising out of employment, so as to be within act, must allege
nonassent to act by either employer or employee. Steagall v. Sloss-
Sheffield Steel & Iron Co. (Ala.)..

Petition is insufficient where it does not set forth matter in dispute and
claims of petitioner in reference thereto. Clark v. Kennebec Journal
Co. (Me.)

In action by employee against third party whose negligence had caused in-
juries, it was not error to permit plaintiff to file amended declaration
identical with original count except in so far as alleged that employer
and employee was subject to provision of act, and that employer
was insured with insurer, and that employee had elected to take and
had been paid compensation, since amendment did not introduce new
cause of action. Davis v. Central Vt. Ry. Co. (Vt.).
Exception to petition for compensation held not maintainable under act.
Pierre v. Barringer (La.)

Claimant's petition for doctor's bills held insufficient.

767

891

301

837

841

3

66

328

Verdict and answer to interrogations held consistent. Central Indiana Ry.
Co. v. Davis (Ind.)

§ 402. EVIDENCE.

801

Evidence on defendant's motion for directed verdict must be viewed in the
light most favorabie to plaintiff. Davis v. Central Vt. Ry. Co. (Vt.).... 328

$403.
PRESUMPTIONS AND BURDEN OF PROOF.
Burden of establishing that claimant was unable to work in employment
in which he was engaged at time of injury was on claimant. Wood-
cock v. Dodge Bros. (Mich.)
Employer had burden of proving fire was intentionally started. Milne V.
Sanders (Tenn.)

97

142

200

In proceeding for death or one employed on freight train loaded with inter-
state and intrastate shipments, there is no presumption that duties per-
formed by him were in instrastate commerce, and claimant has burden
of proving such employment. Philadelphia & R. Ry. Co. v. Polk (Pa.).. 195
Dependency of deceased employee's wife is presumed. East St. Louis Board
of Ed. v. Indust. Comm. (III.)
General denial in action at law for damages to employee. in which complaint
alleged that employer had permitted his insurance to lapse, requires
plaintiff to prove the apse of such insurance by a preponderance of the
evidence to establish his right to sue at law.-Employer held to have
burden of proving election under act. Talge Mahogany Co. v. Burrows
(Ind.)
Where wokman sustains partial. temporary disability. continuing after a
period of total disability, evidence must be introduced to prove wages
that he will be able to earn during period of such disability, and bur-
den of proof is on him to show that. fact. Zwaduk v. Morris & Co. (Kan.) 238
Employee, suing to set aside award made by Board, had burden of proving
that employer was subscriber under act at time of injury. Texas Em-
'ployers' Ins. Ass'n v. Pierce (Tex.)

Alleged dependents are rquired to show facts upon which such dependency
exists except where statute makes wife and certain minor children pre-
sumptively dependent. Hancock v. Indust. Comm. (Utah.).
Claimant must show accident in employment and conditions resulting. St.
Louis Smelting & Refining Co. v. Indust. Comm. (Ill.). ......................
Burden of proof is upon claimant to establish such facts as are essential to
recovery, including necessary relation between alleged master and serv-
ant-Claimant's prima facie proof of relation must be overcome. Kel-
ley's Dependents v. Hoosac Lumber Co. (Vt.)...
Claimant must prove employment was intrastate commerce. Scanlon v.
Payne (Pa.)

203

311

314

366

445

631

Burden of proving accident in course of employment is upon petitioner. Gel-
zel v. Regina Co. (N. J.)

582

Burden of proof is on one who attacks jurisdiction under act on ground of
admiralty jurisdiction. Taylor v. Robert Ramsay Co. (Md.).
Burden is on applicant to show injury arose out of employment.
Eastman Co. v. Indust. Acc. Comm. (Cal.)

704

Geo. L.

659

Claimant has burden of proving disability by evidence amounting to more
than mere conjecture or possibility. Studebaker Corp. w Warner (Ind.). 799
Burden of proof is on entployer seeking reduction of compensation to em-
ployee covenanting not to sue third person. Renner v. Model Laundry,
Cleaning & Dyeing Co. (Iowa). . . . .
815
Claimant must show accidental injury arose out of and in course of employ-
ment. Associated Employers' Reciprocal v. State Indust, Comm (Okla.) $78

3 404.

ADMISSIBILITY.`

Where carrier who paid compensation on behalf of injured employee
brought action against third person on ground that it was subrogated
to employee's cause of action, policy was admissible in evidence West-
ern Indemnity Co. v. Wasco Land & Stock Co. (Cal.)..
Testimony of physicians as to statements by, deceased employee that he
stick splinter in finger and as to time. held competent: but testimony
as to where accident occurred not competent. Valentine v. Weaver (Ky.)
In suit to enjoin enforcement of judgment recovered by physician against
employer which was member of Employers' Insurance Association, poli-
icy of insurance and, proof of injury should not be admitted but proof
should be restricted to fact that employer was member of association
Huddleston v. Texas Pipe Line Co. (Tex.)..

Award not competent to prove employer a subscriber. Texas Employers' Ins.
Ass'n v. Pierce (Tex.)

49

306

311

Referee of Commission who permitted four witnesses to testify to state-
ments made by deceased before he died and who permitted other wit-
nesses to state their inferences or conclusions alone disregarded restric-
tions on reception of legally incompetent evidence before Commission.
Rockefeller V. Indust. Comm. (Utah.).......

Physician's certificate held not evidence to be considered by Commission.
Dunn v. Brooklyn Rapid Transit Co. (N. Y.)

317

613

Copies of agreements filed with department of labor have no probative force
in judicial proceedings to recover compensation under said agreements,
in absence of statutory warrant for their reception in evidence. Dubles
v. Manufacturers' Liability Ins. Co (N. J.)

Findings of Commission were admissible in' suit by insurer against wrong-
doer. U. S. Casualty Co. v. Superior Hardware Co. (Wis.).

rest

Hearsay evidence alone will not support award.-When incompetent and
irrelevant testimony has been excluded, findings and award must
upon competent evidence of sound character whether direct or circum-
stantial. Valentine v. Weaver (Kỵ,)...

.....

Award for death of one employed on freight train loaded with both inter-
state and intrastate shipments cannot rest on speculation that there may
have been some duties on his part directed to intrastate cars and freight.
Philadelphia & R. Ry. Co. v. Polk (Pa.)..........
Claims need not be made out with same exactness of proof required in ac-
tions at common law, but, when expert testimony is relied on to show
connection between alleged cause and certain result, it is not enough
for the witnesses to testify that ailment in question might have resulted
from assigned cause, they must at least testify that, in their opinion,
result most probably came from cause alleged. Fink v. Sheldon Axle &
Spring Co. (Pa.)

Hearsay evidence can only be usd to lead to tangible proof which sheds light
on ultimate question and finding by Commission based on hearsay evi-
dence alone is not supported by sufficient evidence, Rockefeller v., In-
dust. Comm. (Utah.)

was ap-

Court's finding of employment in interstate commerce held to be against
clear preponderance and great weight of evidence so that act
plicable. Savich v. Hines (Wis.)
Compensation cannot be awarded on evidence leaving liability to conjecture.
Ideal Fuel Co. v. Indust. Comm. (Ill.)
Burden rests upon claimant to establish case by preponderance of evidence.
Flint v. City of Eldon (Iowa.).

Award cannot rest upon speculation.
Indust. Comm. (In.) ....

585

839

49

195

272

317

337

356

382

St. Louis Smelting & Refining Co v.'

366

457

Findings of contributory negligence within act held not supported by evi-
dence. Beck v. Siemers (Wis.)
Admission of payments to paintiff made in answer filed by defendant in suit
to recover compensation under alleged agreements made between parties
is presumptive evidence that payments were made only under those pro-
visions of the law which required the making of an agreement. Dubies
v. Manufacturers' Liablity Ins. Co. (N. J.)
585
Finding that inhalation by decedent of smoke-laden air in mine hastened his
death held supported by evidence. Utilities Coal Co. v. Herr (Ind.).. 805
Inferences held no basis for award. Spring Canyon Coal Co. v. Indust. Comm.
of Utah (Utah.)

891

(2). Relation of parties.

Evidence held to support finding that deceased was employee of town.
Chisholm's Case (Mass.)

246

Common-law evidence is necessary to establish fact of employment. Hines
v. Henry I. Stetler, Inc. (N. Y.)
Finding of relation within act held sustained by evidence. Kelley's Depend-
ents v. Hoosac Lumber Co. (Vt.)

258

445

Evidence held to show claimant's employment was not casual. Jones v. In-
dust. Acc. Comm. (Cal.)

676

Evidence held insufficient to show employment was not casual, Ford v. In-
dust. Acc. Comm. (Cal.)

674

.......

Evidence held to show that three persons operating sawmill were partners,
and that such partnership was employer of claimant. Fetterhoff v. Gee
(Ind.)

808

(3). Acceptance or rejection of statute.
Evidence of lapse of insurance. held insufficient. Talge Mahogany Co. V.
Burrows (Ind.)

(4). Injury arising out of and in course of employment.
Commission's conclusion that employee's injury arose out of and in course of
employment held not supported by evidence, there being no reasonable
"inference" to this effect, but mere "conjecture" which does not rest on
premises of fact. Clapp's Parking Station v. Indust, Acc. Comm. (Cal.)
Evidence held to sustain finding that deceased received injury causing
death upon premises of employer.-Evidence held to sustain finding of
commission that death resulted from injury and not from deceased's re-
fusal to submit to medical or surgical treatment. Snyder v. Indust.
Comm. (111.).

Evidence, including medical testimony, held insufficient to show that injury
sustained by decedent arose out of and in course of his employment..
Valentine v. Weaver (Ky.)

203

9

32-

49