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.
Muncle 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. (Ill.)
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.)
REVIEW BY COURT IN GENERAL.
(1). Nature and form of remedy.
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.)
Decision of commissioner of arbitration committee on fact in controversy is
reviewable by certiorari. James Black Dry Goods Co. v. Iowa Indust.
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-
tion 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.)
(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. (Ills.) 168
Where evidence tends to show notice was given. award of commission wil
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.)
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 Tp. (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 v. State Industrial Comm. (Okla.)
(8).
Harmless error.
Allowance of hearsay evidence by commissioner does not require court to
reverse his decree, unless based on such incompetent testimony. Mail-
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 blas 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.)....
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.
(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).
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
Саве. (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.)
Judgment entered upon the going down of remittitur from Supreme Court,
that defendant Department make such order for compensation to plain-
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.)...
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-
fled 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.)
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 th
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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