Verdict and answer to interrogations held consistent. Central Indiana Ry.
Co. v. Davis (Ind.)
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.)
In proceeding for death of 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. C'emm. (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.)
Burden of proving accident in course of employment is upon petitioner. Gel-
zel v. Regina Co. (N. J.)
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.
Louis Smelting & Refining Co. v. Indust. Comm. (II.)
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.)
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.)
Claimant has burden of proving disability by evidence amounting to more
than mere conjecture or possibility. Studebaker Corp. v. Warner (Ind.). 799
Burden of proof is on employer seeking reduction of compensation to em-
ployee covenanting not to sue third person. Renner v. Model Laundry,
Cleaning & Dyeing Co. (Iowa.)....
Claimant must show accidental injury arose out of and in course of employ-
ment. Associated Employers' Reciprocal v. State Indust, Comm (Okla.) 878
![[blocks in formation]](https://books.google.com.pe/books/content?id=_hgWAAAAYAAJ&output=html_text&pg=RA2-PT28&img=1&zoom=3&hl=en&q=editions:UOM39015065180872&cds=1&sig=ACfU3U00ncISb7HLOj455opxwZqxy7r1Mg&edge=0&edge=stretch&ci=192,1019,296,18)
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
stuck splinter in linger 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.
Ass'n v Pierce (Tex.)
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.)
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.
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.)..
![[blocks in formation]](https://books.google.com.pe/books/content?id=_hgWAAAAYAAJ&output=html_text&pg=RA2-PT29&img=1&zoom=3&hl=en&q=editions:UOM39015065180872&cds=1&sig=ACfU3U0RJ8Iw-YPtScmhAiDrX2eTRhdN6g&edge=0&edge=stretch&ci=131,329,397,38)
Hearsay evidence alone will not support award.-When incompetent and
irrelevant testimony has been excluded, findings and award must rest
upon competent evidence of sound character whether direct or circum-
stantial. Valentine V. Weaver (Ky.)...
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.)
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. (III.)
Burden rests upon claimant to establish case by preponderance of evidence.
Flint v. City of Eldon (Iowa,)
Award cannot rest upon speculation.
Indust. Comm. (III.)
St. Louis Smelting & Refining Co v.
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' Liabiity Ins. Co. (N. J.)
Finding that inhalation by decedent of smoke-laden air in mine hastened his
death held supported by evidence. Utilities Coal Co. v. Herr (Ind.).... 895
Inferences held no basis for award, Spring Canyon Coal Co. v. Indust. Comm.
of Utah (Utah.)
Evidence held to support finding that deceased was employee of town.
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.)
Evidence held to show claimant's employment was not casual. Jones v. In-
dust. Acc. Comm. (Cal.)
Evidence held insufficient to show employment was not casual, Ford v. In-
dust. Acc. Comm. (Cal.)
Evidence held to show that three persons operating sawmill were partners,
and that such partnership was employer of claimant. Fetterhoff v. Gee
(Ind.)
(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 tre ment. Snyder v. Indust.
Comm. (11.)
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.)
Evidence held sufficient to sustain finding that death resulted from accidental
gas poisoning. Larrabee's Case (Me.)
Finding that death by tuberculosis resulted from fractured ankle held sus-
tanied by legal evidence, consisting of testimony of physician who
treated decedent. Gray v. St. Croix Paper Co. (Me.)
Finding that death was result of injury held warranted by evidence.
ger v. Hayes Mfg. Co. (Mich.)
Evidence held sufficient to support inference by commission that injured
died from electric shock and not from another cause. Paton v. Port
Huron Engine & Thresher Co. (Mich.)..
Finding of compensable injury from strain in performance of duties, held
sustained by evidence, Zukowsky v. Philadelphia & Reading Coal & Iron
Co. (Pa.)
Finding of wife's dependency held sustained by evidence. Hinchuk v. Swift
& Co. (Minn)
Evidence held to sustain finding that death resulted from hemorrhage caused
by blow from dump wagon used in course of employment. Yodis v.
Philadelphia & Reading Coal & Iron Co. (Pa.)
Evidence held to sustain finding that fire was accidental. Milne v. Sanders
(Tenn.)
Sunstroke held not shown to be injury arising out of employment which was
delivering coal, Dougherty's Case (Mass.)
Where evidence does not show that claimant's hernia did not exist before
accident, or that it was not caused by work for other employers after
accident, award cannot be sustained on mere guess of commission's ex-
pert as to cause of claimant's condition a year and a half after accident.
McCarthy v. Globe Automatic Sprinkler Co. (N. Y.)....
Evidence held not to warrant finding that paralysis resulted from contact
with swinging door. Fink v. Sheldon Axle & Spring Co. (Pa.)..
Evidence held not to show that cerebral hemorrhage was caused by threat
of fellow employee. Ideal Fuel Co. v. Indust. Comm. (Ill.)
Evidence held insufficient to show conditions resulted from lead poisoning.
St. Louis Smelting & Ref'g Co. v. Indust. Comm. (III.) . . .
Evidence held insufficient to show that wagon driver's death was caused by
fall. Lawrence Ice Cream Co. v. Indust. Comm. (Ill.).
Evidence held to show that death from tetanus resulted from injury in em-
ployment. Bresee v. Clark Equipment Co. (Mich.)....
Evidence that employee was directed to go on gondola car and was seen on
it and few minutes later was found in half-reclining position at foot of
ladder leading to top of car, and complained of being hurt, and died
soon after from acute dilation of heart which in opinion of physicians
could be and usually was produced by a fall, warranted conclusion that
employee either jumped or fell from car and death was caused by shock.
Shaw v. Packard Motor Car Co. (Mich.)
Evidence held insufficient to show cancer was result "naturally and unavoid-
ably" resulting from accidental injury. Schapiro v. Wanamaker (N. Y.) 623
Evidence held to sustain finding that cause of death was injuries sustained
in explosion in coal mine, while deceased was engaged in firing shots
therein, and not a mechanical obstruction of the bowels, as claimed by
employer. Miami Coal Co. v. Luce (Ind.)
Claimant's evidence of cause of death following operation held insufficient.
Dulac v. Procter & Bowie Co. (Me.)
Evidence held to warrant finding that injury, followed by fatal attack of
pneumonia, was proximate cause of death. Anderson v. Indust. Ins.
Comm. (Wash.)
Evidence held sufficient to warrant finding that motor truck driver was run
over and killed by truck. Geo. L. Eastman Co. v. Indust, Acc. Comm.
(Cal.)
Direct evidence that occurrence hastened death was not necessary in order
to establish that fact if other facts would warrant such an inference.
Utilities Coal Co x. Herr (Ind.).
Testimony supports finding that injury complained of arose out of and in
course of respondent's employment. Butch v. Shaver (Minn,).
Evidence examined, and held that there is no evidence to support award.
Associated Employers' Reciprocal v. State Indust, Comm. (Okla.)
Fact that employee was killed by insane fellow employee, without more ap-
pearing, held not to justify inference to support award for death. that
fellow employee's act was directed against deceased "because of his em-
ployment". Spring Canyon Coal Co. v. Indust. Comm, of Utah (Utah. 891
Claimant's relationship to deceased held not shown. Brown v. Long Mfg.
Co. (Mich.)
Evidence held to sustain finding of dependency. Driscoll v. Jewell Belting
Co. (Conn.)
Evidence held to support findg of trial judge that decedent's father was
dependent upon him. Halbeisen v. H. Koppers Co. (N. J.)
Evidence held to support findings of Commission that father was not shown
to be incapable of or actually disabled from earning his own living.
Picardi v. Indust. Comm. (Colo.)
Evidence held to show claimant's partial dependency on unmarried son al-
though decedent had not contributed anything for a period of seven
weeks prior to his death after having left home.-Evidence upon which
Board may act as establishing partial or entire dependency of claimant,
need not be direct but may be circumstantial. Kostamo v. H. G. Christ-
man Co. (Mich.)
Highest degree of evidence of dependency is not required, and it is suff-
cient if there is some evidence of a probative character to support find-
ings of Commission. Bennett v. Page Bros. (N. Y.)
Where no claim had been made for compensation for employee's death, al-
though over three years had elapsed and no relatives were present at his
funeral and no inquiries had been made concerning him, held that Com-
mission were warranted in finding there were no dependents. Inter-
Urban Const. Co. v. Indust. Comm (Utah)
Evidence held not to show claimant's dependency on daughter.
E. I. Du Pont de Nemours & Co. (N. J.).
Evidence held not to warrant finding that claimant could not obtain em-
ployment during certain period by reason of his injuries, having left
work paying same wages as he had received prior to injury without ex-
planation. Jordan v. Decorative Co. (N. Y.)
Evidence held to sustain finding that applicant was totally disabled, al-
though he was able to earn good wages but not equal to those he earned
previous to injury. Margenovitch v. Newport Mining Co. (Mich.)..
Finding that injured employee was not totally incapacitated held supported
by testimony. Strong v. Sonken-Galamba Iron & Metal Co. (Kan.).
Evidence held insufficient to show permanent loss of use of leg. St. Louis
Smelting & Ref'g Co. v. Indust Comm. (III.)..
Award held unsupported by evidence, claimant appearing to be "malingerer".
Dunn v. Brooklyn Rapid Transit Co. (N. Y.)
Uncontradicted medical testimony that operation of minor nature on work-
man's arm offered good chance of restoring use of hand, which other-
wise would be permanently disabled, and that operation was attended
with little or no risk, and could not injure arm, held not to sustain com-
mission's finding that workman's refusal to undergo operation at em-
ploye's expense was reasonable. Myers v. Wadsworth Mfg. Co. (Mich.). 549
Compensation not allowable without showing inability to secure work in
former employment or impairment of ability. Capone's Case (Mass.)... 542
Evidence held to justify increase of compensation award. Western Foundry
London Guar. &
Co. v. Indust. Comm. (Ill.)
Evidence held to justify finding of compensable disability.
Acc. Comm. (Colo.)
Evidence held insufficient to sustain allowance of weekly sum for partial
permanent incapacity in that it was uncertain as to how much less
claimant could earn in suitable employment. Union Colliery Co. v. In-
dust. Comm. (Ill.)
Evidence held insufficient to sustain award for partial loss of use of leg.
Studebaker Corp. v. Warner (Ind.)
Percentage of permanent partial loss of normal efficiency is ultimate fact
and may be determined by trial court from all evidence showing nature
and permanency of injuries and conditions before and after, without di-
rect evidence of such percentage. Knuffke v. Bartholomew (Neb.)...... 867
Notice to board of refusal to abide by its final decision is not condition pre-
cedent to suit. Southern Surety Co. v. Nelson (Tex.)
Jury, though waived, may be called to make special findings without in-
structions or werdict. Zwaduk v. Morris & Co. (Kan.)..
Where there was evidence tending to show that employer was operating in
good faith under act and had taken out insurance approved by Board for
term not expired, question whether employee had right to pursue either
his remedy under act or action at law was question for jury, and it was
error to instruct that he had such right Talge Mahogany Co. v. Bur-
rows (Ind.)
Though question whether contract of employment existed is one of mixed
law and fact if facts are disputed it is one purely of law if whole agree-
ment respecting alleged employment is in writing or if facts resepecting
employment are not in dispute. Rockefeller v. Indust. Comm. (Utah.).. 317
Question whether physician was informed that he must look to Employers'
Insurance Association, and not to employer. should have been submitted
to jury. Huddleston v. Texas Pipe Line Co. (Tex.).
If evidential facts are undisputed, question whether injured workman was
independent contractor or employee is for court, but if evidential facts
are disputed and reasonable minds can draw different conclusions from
them, then question is for jury. Coppes Bros. & Zook v. Pontius (Ind.) 495
§ 410.
Instruction that servant's election to choose between remedy under act and
action at law would continue until he elected to pursue one of the reme-
dies is not exact.-Where defense asserted. not only that plaintiff had
elected to accept compensation, but also that under facts he was not
entitled to such election, defendant was entitled to requested instruction,
informing jury that, if he failed to recover in that action, such failure
would not defeat his right to compensation. Talge Mahogany Co. v. Bur-
rows (Ind.)
TRIAL OR HEARING BY COURT-VERDICT AND FIND-
INGS.
Neither evidence nor findings show that, when he was kicked, workman was
in act of cleaning horse; statement that he was, found only in trial
judge's memorandum, is not equivalent of specific finding that such
was fact. Harris v. Kaul (Minn.).
No estoppel arose in favor of insurer against insured employee who agreed
to accept lump sum settlement. employee having been without power
to contract in premises, as insurer knew, and justice court which ren-
dered judgment for such lump settlement having been without jurisdic-
tion to hear and determine issue. Employers' Indemnity Corp. v. Woods
(Tex.)
When not challenged for fraud, courts are without authority to nullify
legislative declaration. Integrity Mut. Casualty Co. of Chicago, Ill. v.
Nelson (Minn.)
EXECUTION AND ENFORCEMENT OF JUDGMENT OR
APPEAL OR OTHER PROCEEDING FOR REVIEW.
In action at law for injuries to employee where plaintiff claimed employer
had failed to maintain insurance required, defendant was not prejudiced
by the court's refusal of his requested charge that action was one at
common law. Talge Mahogany Co. v. Burrows (Ind.).
Undertaking on certiorari held to obligate surety to pay judgment for com-
pensation, and not merely costs and damages.-Undertaking on certio-
rari to review judgment held enforceable as common-law obligation al-,
though its conditions are more onerous than would have been required
if statutory bond had been given to effect same purpose.-Undertaking
on certiorari to review judgment held to secure payment of install-
ments. Carlson v. American Fidelity Co. (Minn.)
Where finding of trial judge on question of dependency has evidence to sup-
port it, judginent awarding compensation must be affirmed. Halbeisen
v. H. Koppers Co. (N. J.)
Entire compensation not allowable to father as dependent; burial expenses
held allowable on appeal from compensation judgment. Heinzelman v.
Board of Com'rs of Port of New Orleans (La.)
Findings of fact by trial judge will not be disturbed if they are supported
by evidence, Geizel v. Regina Co. (N. J.)............
PROCEEDINGS BEFORE BOARDS OR COMMISSIONS.
Requirement for filing statement or stenographic report with commission
is directory-such report may be amended. Lawrence Ice Cream Co. v.
Indust. Comm. (Ill.)
Commission may close case or keep it open.
Moray v. Indust, Comm. (Utah) 747
§ 415.- RECEPTION OF EVIDENCE.
Medical testimony taken ex parte is not to be made foundation of decree un-
til it is produced in evidence, so that either party may have opportunity
to explain or contradict it. Gauthier v. Penobscot Chemical Fiber Co.
(Me.)
Where commission's decision refusing compensation became final on failure
to bring it up for review by court, commission had no jurisdiction, by
subsequent hearing, to review and set aside the decision. Centralia
Coal Co. v. Indust, Comm. (111)
|