exclusive only by the institution of an action in the chosen form. Under the laws of most of the States, however, election is made at the time the contract is entered into either actively or passively, and such election is binding until other action is taken disavowing the same. The Supreme Court of Kansas held that under its law the remedy by compensation is exclusive, and if one desires to retain the right to sue for damages he must reject the compensation law in advance. (Shade v. Ash Grove Lime, etc., Co., 144 Pac. 249.) So also the Supreme Court of Rhode Island held that an employee making a contract in the State of Massachusetts and accepting the compensation law of that State extinguishes his right to sue for damages at common law in that State, and, having lost that right, he can not sue at common law in any other State in which he may reside. (Pendar v. H. B. Am. Mach. Co., 87 Atl. 1.) Applying the same principle of the control of local law, it was held that the Washington statute, though exclusive where applicable, as already noted, does not bar suits for damages in that State where the cause of action arose in a State permitting such suits, the law of the locality being enforceable in whatever jurisdiction it might be brought. (Reynolds v. Day, 140 Pac. 681.)

A somewhat different aspect of the question of the exclusiveness of the remedy given under compensation legislation is found in a case (Shanahan v. Monarch Engineering Co., N. E.) in which the New York Court of Appeals held that the law takes away the right of the next of kin of a deceased workman to sue under the former statute allowing suits for damages on fatal cases, the compensation law being held to cover the entire field of remedy for the death of an employee. There were no dependents in the case in hand.

NOTICE AND CLAIM.

Practically every law requires notice of an injury and a presentation of the claim within a specified time, failure to comply with the law being either a complete or partial bar to the procuring of compensation benefits. The Connecticut law made want of notice within the time fixed a bar to the claim to the extent that the employer should be shown to be prejudiced thereby. The phrase "want of notice" was construed by the supreme court of that State to mean absolute lack of notice. It was said, however, that this was not intended by the act to be an absolute bar to the claim, but only a ground for a diminution of the award to the extent that the employer should be shown to be prejudiced by the failure to receive notice. (Schmidt v. Baking Co., 96 Atl. 963.) Where there has been a delay beyond the period fixed by statute, provision is made in the Massachusetts law that the claim may still be renewed if the delay was due to reasonable cause. The supreme court of the State

held (In re Fierro, 111 N. E. 957) that the industrial board should not assume that there was reasonable cause or act on a supposed reason, but that it must be positively shown that there was ground for the delay. What was a sufficient notice under the Massachusetts law was passed upon by the industrial accident board, and, where it was shown that oral notice had been given to the manager and also to one of the partners in the business, it was ruled that the employing association had knowledge of the injury under the law, even though no written notice had been given, either to the employer, the insurance company, or the board; and the supreme court of the State ruled similarly where the injured man had told a foreman and a timekeeper of the injury. (In re Bloom, 111 N. E. 45.)

Oral inquiry of the manager of a firm as to "what he was going to do" in the matter of compensating an injury was held by the Supreme Court of Kansas to be sufficient notice. (Gailey v. Peet Bros. Mfg. Co., 157 Pạc. 431.) The effect of such informal but actual notice was discussed by the Supreme Court of Wisconsin (Pellett v. Industrial Commission, 156 N. W. 956), the court saying that the employer would be estopped to plead the lack of statutory notice unless actual prejudice could be proved; in this case the injured workman told one of his employers of the fall causing the injury, and they agreed to pay the doctor's bill, and also made a payment for time lost within the 30 days during which notice might be given, the law of this State providing that such payment shall be equivalent to notice.

A claim was held by the Supreme Court of Michigan not to be barred in a case in which notice of the death of an alien had been timely given, and steps had also been taken to procure letters of administration, though these did not arrive until after the expiration of the prescribed six months' period; it was held that the claim had not been outlawed, as the employer had had opportunity to investigate the facts and had not been prejudiced by the delay, the court ruling that the law ought not to be technically construed. (Matwiczuk v. American Car & Foundry Co., 155 N. W. 412.) More technical was the ruling in the case of a claim preferred by the Austrian consul at Pittsburgh for compensation under the law of West Virginia, the public service commission ruling that it could not be considered on the ground that the application must be made in due form within six months from the date of the death, as provided by the act.

Another limitation contained in this law barred a claim in the case of the death of a man as the result of an injury, the death not occurring until after the expiration of 90 days from the date of the accident causing it. The law provides that compensation is payable only

where death supervenes, as a result of the injury, within 90 days after the accident.

The law of Nebraska requires claims for compensation to be presented within six months "after the injury occurred." Where a man was the victim of an accident which did not result in noticeable injury for some time afterwards, and gave notice within six months from the later date, but more than six months from the date of the accident, it was held by the Supreme Court of Nebraska that the law had been complied with. (Johansen v. Union Stockyards Co., 156 N. W. 511.)

A provision common to several of the laws is that want of or defect in the notice shall not be a bar to a claim unless the employer is prejudiced in his rights thereby. Such a provision is found in the Kansas statute, and the supreme court of that State (Knoll v. City of Salina, 157 Pac. 1167) sustained an award to a claimant in a case where written notice had not been given within the period named in the law, but oral notice had been given, and no right of the employer had been affected. It was also held in this case that an oral demand for compensation was a sufficient claim.

A case involving multiple injuries was before the Supreme Court of California (Ehrhart v. Industrial Accident Commission, 158 Pac. 193), in which an award by the commission was reversed. The injured man had submitted a claim for injuries to a leg, compensation being allowed. Some months later he asked compensation on account of injuries to the chest alleged to have been received at the same time, which the commission allowed on the ground that it had continuing jurisdiction over the case for the period of 245 weeks fixed by law, taking this to cover all injuries received by the injured man at the time of the accident. This contention the court rejected, holding that the commission had jurisdiction of only such injuries as had been called to its attention within the period of six months prescribed as a limitation by the act. This view was held to be necessary in order to the realization of the intention of the legislature that all injuries for which claims were to be submitted should be subjected to timely investigation, both to prevent the encouragement of false claims and to enable the proper steps to be taken to give remedial treatment.

DISPUTES.

There is a considerable variety in the method of determining disputes or reviewing awards on appeal or otherwise, the laws of some States being much more stringent in their provisions than others. In the California statute of 1913 a distinction was made between settlements under agreement and those under an original award by the commission, proceedings in review being allowed in

the former case only within six months after any payment, while in the latter case the commission obtains jurisdiction for 245 weeks. In a case before the commission it was found that some eight months after the last payment made under an agreement, an injury to the eye from which apparent recovery had been had was lighted up, leading to renewed disability. It was held that since there had been an agreement and not an original award new proceedings were barred, which was pointed out by the commission as a provision of the law the hardship of which should be remedied by amendment. This step was taken by the legislature in 1915.

The Kansas statute permits the bringing of suits to determine awards under the law "in default of agreement and arbitration." This was held by the supreme court of the State (Halverhout v. S. W. Milling Co., 155 Pac. 916) not to make an attempt to agree or to secure arbitration a condition precedent to the bringing of the suit, but that either in the absence of such action or upon its failure, suit might be brought.

Many of the provisions of the acts indicate a desire to secure the prompt determination of the points in issue, the law of Massachusetts providing that no second hearing shall be had as a matter of right on any question of fact. The supreme court of the State (In re Fierro, 111 N. E. 957) ruled that on an appeal, if there was a full trial of the question in issue there shall not be a rehearing ordered, but a final decree shall be entered. The right of appeal was denied to a railroad company under the New York law in a case in which an award had been made to the injured employee, the supreme court of the State, appellate division, holding that since the employer is protected from all liability by the insurance fund, he has no interest in the award that would give him a right to appeal, the possibility of an increase of the premium rates being too remote to confer such a right. (Crockett v. State Insurance Fund, 155 N. Y. Supp. 692.)

A provision of the New Jersey law requires the determination of cases before the court within 30 days after final hearing. This was held by the supreme court of the State to be directory only, and not mandatory, so that no invalidity was attached to later decisions. (Diskon v. Bubb, 96 Atl. 660.)

EVIDENCE.

Procedure under the compensation laws naturally differs largely from the technical court procedure in damage suits, though the courts differ largely as to the real extent of such departure that is proper. The Supreme Court of California (Englebretson v. Industrial Accident Commission, 151 Pac. 421) held that evidence that a certain act might have been a sufficient cause of the injury suffered would not

support the claim, being only hearsay, saying that though the commission was not bound by technical rules the rule excluding hearsay was not technical. On the other hand, the Supreme Court of New York, appellate division (Carroll v. Knickerbocker Ice Co., 155 N. Y. Supp. 1), said that the spirit of the statute is that the commission shall be "wholly unfettered by any law previously invented by man.” In the case in hand there was slight evidence of internal injury and some evidence supporting the inference that the man strained himself in his work, which was, however, mainly hearsay and partly hearsay on hearsay." It was said that "no court would have hesitated a moment to reject it," but that "all the rules of evidence, the accumulation of centuries of experience and wisdom, were ignored by the commission." The decision was affirmed as carrying out the purpose of the legislature in enacting the law. When the case came to the court of appeals, however, it was said that while the law does provide that the commission is "not bound by common law or statutory rules of evidence or by technical or formal rules of procedure," it must be borne in mind that this provision of the statute is meant to enable the commission "to ascertain the substantial rights of the parties." The presumption that the claim comes within the provisions of the act, as the law provides, can not prevail against substantial evidence to the contrary; and while the commission "may in its discretion accept any evidence that is offered, still in the end there must be a residuum of legal evidence to support the claim before an award can be made." Persons present testified that they saw no injury inflicted or accident take place, nor were there any marks as of bruises or abrasions, such as would have existed had the statements of the decedent been correct; so that the reported remarks of a man in a highly nervous condition, verging on delirium tremens, which subsequently developed, were held not sufficient to support an award, and the judgment was reversed with costs against the commission (113 N. E. 507).

The industrial commission of Ohio went almost as far as the New York commission and supreme court in the above case in making an award for the death of a man from blood poisoning, where there was no one who saw the injury inflicted which was regarded as responsible for the death, and the evidence as to causation was contradictory. A large amount of evidence was considered, both direct and hearsay, but since the commission was not bound by statutory rules of evidence or of procedure it was able to reach the conclusion that the injury should be regarded as the proximate cause of the death, and compensation was awarded accordingly.

The Supreme Court of Wisconsin sustained presumptions in favor of the claimant in a case in which the trial court had decided that in the absence of witnesses the theory of accident was only equally