SIMON v. H. J. CATHROE CO. ET AL. (No. 21936.) 184 Northwestern Reporter, 130. (Syllabus by Editorial Staff.) MASTER AND SERVANT-COURT'S FINDING ON EVIDENCE IN COMPENSATION CASE CONCLUSIVE. A finding of the district court on an issue of fact in a compensation case will not be set aside on appeal, where it is supported by sufficient evidence, or where the evidence is substantially conflicting, unless the finding is clearly wrong. (For other cases, see Master and Servant, Dec. Dig. § 418[6].) Appeal from District Court, Lancaster County; Stewart, Judge. Claim by one Simon,. employee, for compensation under the Workmen's Compensation Act, opposed by the H. J. Cathroe Company, employer, and the London Guarantee & Accident Company. in which compensation was awarded. Subsequently the employee applied for increased compensation on the ground of permanent partial disability through change in condition. Judgment for the employer and the employee appeals. Affirmed. R. J. Greene, of Lincoln, for appellant. Kennedy, Holland. De Lacy & McLaughlin. of Omaha. for appellee. Heard before Morrissey, C. J., and Aldrich, Day, Dean, Flansburg, and Rose, JJ. PER CURIAM. This is a claim under the Workmen's Compensation Act. Laws 1913. c. 198. Plaintiff was injured while in the employ of defendant, H. J. Cathroe Company. and under judgments heretofore pronounced has recovered compensation. The present proceeding is in the nature of an application to have the court declare that there has been a change in plaintiff's condition since the former judgment wherein plaintiff was found to be suffering from permanent partial disability, and the court is now asked to hold that he is suffering from permanent total disability. There was no new question of law presented, and the question before the trial court was one of fact. Plaintiff offered the testimony of men eminent in the profession of medicine and surgery, one of whom had performed the original operation on plaintiff and had testified on a former hearing of the case. Without undertaking to quote this testimony. but giving it the full force that plaintiff claims it is entitled to. we may say that it tends to support plaintiff's claim of permanent total disability. But defendant offered testimony of others. also eminent in the profession of medicine and surgery, and, without setting out their testimony, it may be said that it shows plaintiff is suffering permanent partial disability. On this conflicting evidence the trial court found generally for the defendants. It is the settled law of this state that a finding of the district court on an issue of fact in a compensation case will not be set aside on appeal where it is supported by sufficient evidence, or where the evidence is substantially conflicting, unless the finding is clearly wrong. Manning v. Pomerene, 101 Neb. 127. 162 N. W. 492; Miller v. Morris & Co., 101 Neb. 169, 162 N. W. 417; Kauscheit v. Garrett Laundry Co.. 101 Neb. 702. 164 N. W. 708; Anderson v. Kiene, 103 Neb. 773, 174 N. W. 301; American Smelting & Refining Co. v. Cassil, 104 Neb. 706. 178 N. W. 639; Lincoln Gas & Electric Light Co. v. Crowley, 104 Neb. 701. 178 N. W. 640; Christensen v. Protector Sales Co., 105 Neb. 181 N. W 146. And this is the general rule Note to L. R. A. 1916A, 266. The evidence being ample to sustain the judgment, the issue of fact determined by the trial court will not be disturbed. The judgment is affirmed. SULLIVAN MACHINERY CO. v. STOWELL. (Supreme Court of New Hampshire. Sullivan. June 29, 1921.) 114 Atlantic Reporter, 873. 2. MASTER AND SERVANT-WHETHER PARTY HAS AGREED TO PAY OR RECEIVE COMPENSATION NOT DETERMINABLE IN SUIT IN EQUITY. Under Employers' Liability and Workmen's Compensation Act, § 9, authorizing suits in equity in certain cases and providing that either employer or workman might apply to the superior court in similar proceedings for the detemination of any other question that might arise under the compensation feature of the act since the Legislature has no power to require the submission of a controversy exceeding $100 in value to a single judge, the procedure evidently contemplates a case where both parties understood that compensation was to be paid and received, and whether a party has agreed to pay compensation, or the other to accept it, are not questions arising under the compensation feature of the act, which may be determined in a suit under the act. (For other cases. see Master and Servant, Dec. Dig. § 394.) 3. MASTER AND SERVANT REFUSAL OF WORKMAN TO CLAIM COMPENSATION UNDER ACT EXCLUDES JURISDICTION OF SUIT TO DETERMINE COMPENSATION. Under Employers' Liability and Workmen's Compensation Act, § 4, providing that a right of action at common law for damages caused by injury to a workman shall not be affected by the act, unless the workman shall avail himself of the act. the answer of the workman that he claims no compensation under the act prevents the court from having jurisdiction in the employer's suit under the act to determine the compensation. (For other cases, see Master and Servant, Dec. Dig. § 351.) 4. MASTER AND SERVANT COMPULSORY. COMPENSATION ACT NOT Under the Employers' Liability and Workmen's Compensation Act, the intention of the Legislature was not to compel acceptance of the act by either employees or employers, but was to induce the acceptance of the act by taking away from the employer who refused to accept it about the only real defense he had at common law, and to persuade the workman to accept the provisions of the act, and to compel him, after having accepted it, to abide thereby. (For other cases, see Master and Servant, Dec. Dig. § 351.) Transferred from Superior Court, Sullivan County; Kivel, Judge. Suit by the Sullivan Machinery Company against Carl A. Stowell. Injunction granted plaintiff. Transferred on defendant's bill of exceptions. Exception sustained, and injunction dissolved. The defendant, who was injured while employed by the plaintiffs, sued them, and they filed a plea alleging that they had accepted the provisions of Laws 1911, c. 163, and that he had also accepted the provisions of the act. They also filed this bill, alleging the same facts, and praying that the defendant's compensation under the act be determined. and that he be enjoined from prosecuting his action at law. The court found that the facts alleged in the bill were true, and appointed a master to determine the compensation due the defendant under the act, and enjoined him from prosecuting his suit against the plaintiffs. and he excepted. Streeter, Demond, Woodworth & Suiloway and Jonathan Piper, all of Concord, for plaintiffs. Jesse M. Barton, of Newport, and Francis W. Johnston, of Claremont, for defendant. PARSONS, C. J. The defendant, having suffered an injury while in the plaintiffs' employ, brought a common-law suit against them, alleging his injuries were caused by their negligence. The plaintiffs, defendants in that action, filed a brief statement of defense, alleging that they had accepted the provisions of chapter 163, Laws of 1911, and that the plaintiff had accepted compensation under the provisions of that chapter for the injuries alleged in the writ. Section 4 of chapter 163, Laws of 1911, "the Employers' Liability and Workmen's Compensation Act, provides: * * * "The right of action for damages caused by any such injury, at common law shall not be affected by this act, but in case the injured workman shall avail himself of this act, either by accepting any compensation hereunder, by giving the notice hereinafter prescribed, er by beginning proceedings therefor in any manner on account of any such injury, he shall be barred from recovery in every action at common law." The brief statement, therefore, set up a good defense to the action. Not content with the forum so presented for the trial of the issue upor which their defense rested, the present plaintiffs petitioned the court to enjoin the prosecution of the suit, alleging the facts set out in the brief statement, and that they were unable to agree with the defendant as to the amount of compensation due him. The court found the defendant had accepted compensation and enjoined the prosecution of the suit at law. subject to exception. Section 9 of the act authorizes any injured workman, in case the employer fai's to pay compensation as provided in the act, to bring a bill in equity to recover the same. The section also gives the right to any employer, "Who has declared his intention to act under the compensation features of the act, * * * to apply by similar proceedings to the superior court or to any justice thereof for a determination of the amount of the weekly payments to be paid the injured workman, or of a lump sum to be paid the injured workman in lieu of such weekly payments. The section continues: "And either such employer or workman may apply to said superior court or to any justice thereof in similar proceeding for the determination of any other question that may arise under the compensation feature of this act." [1] Under these provisions it is argued that the issue whether the plaintiff had accepted compensation was before the court as a jurisdictional fact, and, having been found against the workman, was conclusive against him in the collateral proceeding at law, and authorized the enjoining of the further prosecution of that suit. The jurisdictional question, if there was one, was whether the defendant had availed himself of the provisions of the act. The evidence by which the plaintiffs sought to prove this was his acceptance of payments under the act. Payment was, therefore, not the jurisdictional fact in issue, but only evidence of it, and did not become res judicata, so as to be conclusive in a collateral proceeding. King v. Chase, 15 N. H. 9, 41 Am. Dec. 675. [2] That the defendant had given the notice required by the act or commenced proceedings under it would have been also evidentiary facts upon which the plaintiffs might have relied. But it is not probable the Legislature intended by the language used to submit the determination of such an issue to the procedure set out in the act. The Legislature had no power to require the submission of a controversy exceeding $100 in value to a single judge. Giving new rights under the compensatory feature of the act, it had the power to provide such tribunal as it saw fit for the determination of questions arising between parties relying upon the rights so given. That is all that it is probable was intended. The procedure contemplates a case where both parties understand compensation is to be paid and received. Whether one party has agreed to pay compensation, or the other to accept it, are not questions arising under the compensation features of the act, but outside of and independent of them; while the question how much shou'd be paid by an employer who had agreed to make payment to a workman claiming compensation would be a question arising under the compensation feature of the act. [3] An employer's proceeding for a determination of the amount of compensation payable to a workman would seem to be sufficiently met by the workman's answer that he did not claim any compensation. No issue is made by such pleadings. There is nothing to try when the defendant disclaims. The situation would be not unlike that under the Mill Act, when the landowner brings a petition for the assessment of damages under the act and the dam owner answers that he claims nothing thereunder. In such case the petition is dismissed, because the court has no jurisdiction. Jones v. Whittemore, 70 N. H. 284, 47 Atl. 259. Mitchell v. Union Electric Co., 70 N. H. 569, 49 Atl. 94. Such would seem to be the necessary result here of the workman's contention that he did not claim under the act. [4] The Legislature did not attempt to impose upon employers the obligation to pay compensation to injured employees as provided in the act, but endeavored to induce them to accept the provisions of the act by taking from those who did not accept the act "about the enly real defense to an action by a servant which is open to his employer at common law." Boody v. K. & C. Mfg. Co., 77 N. H. 208. 209, 210, 90 At'. 859. 860. Neither did they attempt to compel the servant to accept the compensation provided by the act from an employer, who had agreed to pay it in place of the damages recoverable by the law as it existed at the time the act was adopted. The provisions of section 4 were intended to induce the workman to accept the provisions of the act and tc compel him having made his election to abide thereby. Exception sustained. Injunction dissolved. All concurred. SINDLE v. E. I. DU PONT DE NEMOURS & CO. (No. 26.) (Court of Errors and Appeals of New Jersey. Sept. 23, 1921.) 115 Atlantic Reporter 2. MASTER AND SERVANT - EVIDENCE HELD NOT TO SHOW COMPENSATION CLAIMANT'S DEPENDENCY ON DAUGH TER. In proceeding under the Workmen's Compensation Act (P. L. 1911, p. 134, amended by P. L. 1913, p. 309) by mother of daughter killed in course of employment, evidence held to show that applicant was dependent upon husband and son, and not upon deceased daughter. (For other cases, see Master and Servant, Dec. Dig. § 405 [5].) Trenchard, Parker, Minturn, Ackerson, and Van Buskirk, JJ., dis senting. Appeal from Supreme Court. Proceedings by Mary F. Sindle under the Workmen's Compensation Act to obtain compensation for the death of her daughter, Amy Sindle, opposed by E. I. Du Pont de Nemours & Co., the employer. There was an award of compensation, which was set aside by the Supreme Court, and the applicant appeals. Affirmed. On appeal from the Supreme Court, in which the following per curiam was filed: "Ths is a workmen's compensation case. The Passaic county court of common pleas on a trial de novo affirmed an award for compensation made by the Workmen's Compensation Bureau. The certiorari was issued to review a judgment based on that award. There are several reasons assigned for setting aside the award, but the view we take of the case renders it unnecessary to discuss but one, viz.: We find no evidence of dependency in the record, within the rulings of our courts. Jackson v. Erie R. R. Co., 86 N. J. Law, 550, 91 Atl. 1035; Havey v. Erie R. R. Co., 88 N. J. Law, 684, 96 Atl. 995; Miller v. Public Service Ry. Co., 84 N. J. Law, 174, 85 Atl. 1030; Muzik v. Erie R. R. Co., 85 N. J. Law, 129, 131, 89 Atl. 248, affirmed 86 N. J. Law, 695, 92 Atl. 1087; Conners v. Public Service Elec. Co., 89 N. J. Law, 99, 97 Atl. 792; Reardon v. Philadelphia, etc., R. R. Co., 85 N. J .Law, 90, 88 Atl. 970. The testimony shows the deceased daughter, Amy Sindle, was 17 years old. She was killed on Septmber 6, 1918, in the defendant's factory by a flareup of powder. She had been so employed for a few days only, from August 27 to September 6, 1918, for which she had not been paid at the time of her death. At one time the daughter gave the mother $11 earned from previous work. This is the only money the daughter ever gave her mother. The mother testified: 'A. We got a player piano, and my daughter went to work to pay for that, and we got it just a day before she died; that cost $550; then she went to work to pay for the piano-help pay for it." As we read the testimony in the record, Mrs. Sindle, the petitioner, was dependent upon her husband and her son, and not upon her deceased daughter. "The judgment based upon the award is therefore reversed." Albert Comstock, of Paterson, for appellant. Collins & Corbin, George S. Hobart, and Ralph E. Cooper, all of Jer sey City, for respondent. |