411-Judgment denying compensation held no bar to action for negligence not in issue-nor estoppel in action on negligence. Katzenmaier v. Doeren (Minn.) $ 422. 207 EXECUTION AND ENFORCEMENT OF JUDGMENT OR AWARD. NEW TRIAL. APPEAL OR OTHER PROCEEDING FOR REVIEW. 412-Case may be remanded for taking of further evidence. Bourgeois v. Union Bridge & Const. Co. (La.).... 412-Question of the dependency of father and mother is one of fact, and finding of dependency will not be disturbed if there is any evidence to support it. Tennessee Chemical Co. v. Smith et ux. (Tenn.). 412-Where in the record there was no minute entry of the court which showed that an amendment to an answer setting up as a defense that failure to give the notice required was ordered made, but the recital in the final judgment showed that the amended answer was considered by the court in determining the case, a motion to strike the amended answer from the record must be overruled. Patten Hotel Co. v. Milner (Tenn.) 412-Judgment reviewable on record on certiorari without bill of exceptions. Ex parte W. T. Smith Lumber Co .(Ala.). 412-Motion for additional finding in case is permissible. liery Co. v. 3ate Indust. Comm. (Okla.). 412-Judgment reviewable only on certiorari. Steagall v. Sheffield Steel & Iron Co. (Ala.). 175 785 780 502 McAlester Col 638 495 496 412-Judgment under act reviewable on common-law certiorari. Woodward Iron Co. v. Bradford (Ala.!. 413. 8 414. (7). PROCEEDINGS BEFORE BOARDS OR COMMISSIONS. 414-Commission's procedure defined-has no power to grant rehearing on 414-If the report is not filed within the 30 day limit and objection is not waived by appearance before Commission of objector, award of arbitrator automatically becomes decision of Commission. Illinois Glass Co. v. Indus. Comm. et al. (Ill.). 414-Act permits extension of time to file transcript of proceedings before arbitrator. James O'Donnell Teaming Co. v. Industrial Commission (Ill.) 414-Act permits one extension of time to file transcript of proceedings before arbitrator-commission's jurisdiction of proceeding after arbitrator's report original, not appellate "Jurisdiction" of Commission of proceeding after arbitrator's report governed by circuit court practice as to filing of transcripts. Pocahontas Mining Co. v. Indust. Comm. (I.) 415-Cumulative testimony held properly excluded. S. J. Peabody Lumber Co. v. Miller (Ind.) REPORT AND FINDINGS OR AWARD. 416-Finding of compensable injury held not mere conclusion. Payne v. Wall (Ind.) 416-Finding that claimant received personal injury by accident arising out of and in course of employment is finding of ultimate fact and is sufficient to sustain award. Empire Health & Ac.. Ins. Co. v. Purcell (Ind.) 416-Proper practice followed in approval of fee for medical services to claimant. Goldens' Case (Mass.) 416-General finding of injury in employment held insufficient to sustain award. Jenczewski v. Aluminum Co. of America (N. Y.).... 416-Insurer is estopped by Board's decision on liability of employer of independent contractor. Amalgamated Roofing Co. V. Travellers' Ins. Co. (Ill.) 416-Award under act is no bar to action under Federal act by other parties -finding of employment in intrastate commerce is conclusiveaward is conclusive of claimant's individual rights when suing as administratrix-award is not conclusive as judgment in remaward is not binding on one not dependent. Williams v. Southern Pacific Co. (Cal.) 176 333 478 660 537 540 358 34 39 58 237 122 108 416-Claimant, not appealing from arbitration decision, held properly before board. King v. Peninsular Port. Cement Co. (Mich.). 416-Commissioner's finding should state the facts found and not the evi dence. Grabowski v. Miskell (Conn.)... 416-Award held not invalidated by want of finding on issue of misconduct. S. J. Peabody Lumber Co. v. Miller (Ind.) 416-Findings are not essential to valid award. Bingham Mines Co. v. Allsop (Utah) 192 277 358 473 677 416-Fact that compensation has been allowed under Act is an adjudication as to a minor that he was injured in his regular course of employment as an employee, and that his employment was not casual. Hilsinger v. Zimmerman Steel Co. (Iowa). 416-Where an employee files complaint with commission, and the employer or carrier has been properly served with notice of the time and place of hearing and at the time specified in such notice the Commission proceeds to hear such complaint and makes an award, it is conclusive against the employer or carrier, if not appealed from. Consolidated Fuel Co. et al. v. State Indus. Comm. et al. (Okla.).... 765 416-When on hearing of complaint no objection is made that employee failed to give notice of injury, it is unnecessary for the Commission to make any finding or in any way excuse the failure to give such no¡ice Consolidated Fuel Co. et al. v. State Indus. Comm. et al. (Okla.) Blair v. Washington 416-Award need not state method of fixing disability. 4161⁄2-Award made by Commission becomes final and conclusive, unless appealed from as therein provided, and in absence of fraud. Board of Com'rs of Okmulgee County v. State ex rel. Jackson et al., State Indust. Comm. (Okla.) 765 567 73 417 (1) Application to commission is prerequisite to review by court hearing.-Amendment regulating review of award is retroactive. dust. Comm. v. Peppas (Colo.) 417(1) Scope of review defined. In 339 456 (2) (3.) (3%). (3/4). Callihan v. Montgomery (Pa.) Certification of questions of law. Injunction. Decisions reviewable. 417 (34) Where commission granted order for rehearing, it was not reviewable on certiorari until after final decision on rehearing. Gumilla v. Indust. Acc. Comm. (Cal.) Proceedings for appeal or other form of review. (4.) Presentation and reservations of grounds of review. 417 (4)-New objection on appeal from award to state treasurer under act not considered. Cook v. West Side Trucking Co. (N. Y.)... 417(4)-Employer would have waived employee's failure to file written demand for compensation within required time by failure to raise question. Jackson v. Indus. Comm. et al. (Ill.).... 417(4)-When neither the employer or the carrier appear before the Commission, pursuant to notice duly given, there will be deemed to have waived such matters of defense as they could have reasonably presented. Consolidated Fuel Co. et al. v. State Indus. Comm. et al (Okla.) 417 (4) Constitutionality of act held waived. Centralia Coal Co. v. Indust. Comm. (III.) 321 228 662 765 560 417 (4) Objection to constitutionality of act held waived. Taylor Coal Co. 557 417 (4) Objection to constitutionality of act held waived. v. Indust. Co:nm. (III.) 417(4)-Request for findings in case essential to review. Pocahontas Mining Co. v. Indust. Comm. (III.) Taylor Coal Co. 553 540 (4%). Record. 417 (4%)-Record on appeal held insufficient. 417(4%)-Proceedings included in record. Indust. Comm. (Okla.) Gagnon's Case (Me.). ... 181 McAlested Colliery Co. v. State 638 (4%). Transfer of cause. 417 (4%)-Appeal dismissed for want of notice. Kota v. Standard Steel Car Co. (Ind.) 31 417(4%)-Writ of error held timely. Comm. (Ill.) Joliet & E. Traction Co. v. Indust. 16 64 417 (4%)-Appellant entitled to 33 days to serve notice after notice of award is 'sent". Adams v. Atlanta Const. Co. (N. Y.) 417 (4%)-Void decree of commission will be so declared, though appeal was not taken in time. Conner's Case (Me.). 417 (5) 417 (5) (5). Trial or review. Question of compensable injury held not decided on first appeal. Standard Cabinet Co. v. Landgrave Ind.) Whether parents were dependents of unmarried son held for jury.— Charge on burden of proof as to dependency held proper.-Charge held not erroneous in failing to define "dependent".-Charge held not erroneous as assuming claimant's deceased son worked for year. Charge as to computation of average daily wage held proper.-Error in attorney's agreement was cured by subsequent instruction to disregard such argument.-District court did not err in permitting jury to compute average weekly wage of deceased servant where it made finding of jury its own by incorporating it in the judgment. Lumbermen's Reciprocal Ass'n v. Warner (Tex.) 417 (5) Employer is not estopped by arbitration but relief by reviewing court is limited.-Arbitrator's award is final except for limited review provided by act-act does not limit scope of inquiry as to arbitrator's misconduct or character of award. Wilson & Co. V. Ward (Kan.) 417 (5)-Award may be affirmed on evidence though based on unsupported finding. Kirkley v. General Baking Co. (Mich.) 417 (5) It is assumed that the Board drew the inferences which are in harmony with and support award. Gardiner v. Cochran Chair Co. (Ind.) 417 (5) Under Act, placing the hurden of proof upon party claiming compensation, an insurance company bringing suit to set aside an award for death of minor need not allege that deceased was not an employee within the act. Galloway et al. v. Lumbermen's Indem. Exchange et al. (Tex.) Miller's Indem. Un 417 (5)--Issue as to award in lump sum held proper. derwriters v. Green (Tex.) 176 49 80 171 406 .669 804 645 634 417 (5)-Discretion and duty vested in Industrial Commission devolves upon court or jury on appeal. Indust. Comm. v. Drake (Ohio). 417 (5)-Discretion of board not reviewable. Blair v. Washington (Ind.)..... 567 Question whether injury was within act held one of law. Kraft v. 164 417 (6) Compensable injury question of law reviewable on appeal. Callihan v. Montgomery (Pa.) 456 417 (6) Existence of substantial evidence supporting award is question of law. Bingham Mines Co. v. Allsop (Utah) 478 (7). Questions of fact. 417 (7) 417 (7) Whether permanent and complete disability exists is matter for discretion of arbitrator and Commission acting within provisions of statute. Joliet & E. Traction Co. v. Indust. Comm. (Ill.)..... 417 (7)-On appeal from award, court will not weigh evidence, and it is sufficient that there is some evidence to support award. Standard Cabinet Co. v. Landgrave (Ind.) 417 (7) Evidence held sufficiently vague and uncertain to make finding that injury did not arise out of or in course of action conclusive. Buncle v. Sioux City Stockyards Co. (Iowa.) 417 (7) Order denying compensation supported by findings of fact which have some evidence to support them cannot be disturbed, though evidence appears to preponderate in favor of claimant. Andrews Steel Co. v. McDermott (Ky.) 417 (7) Findings of board cannot be disturbed on certiorari if supported by evidence. King v. Peninsular Port. Cement Co. (Mich.). 417 (7)-Board's finding and award, supported by evidence, is conclusive. Gen'l American Tank Car Corp. v. Weirick (Ind.) Finding, disallowing claim for hernia, held conclusive. Hughes v. Cudahy Packing Co. (Iowa) 16 49 51 54 192 147 156 417 (7) 417 (7) Findings of board held conclusive on certiorari. Gratopp v. Carde 188 186 417 (7)-Review of Commission's award limited to errors of law.-Case held to involve a question of fact not reviewable. Chestnut & Smith v. Lynch (Okla.) 303 417 (7)-Reviewing court will not weigh evidence. Northern Ind. Gas & Elect. Co. v. Thomas (Ind.) 417 (7) Court may not set aside commission's finding of fact as against evidence and order award amended accordingly. Indust. Comm. v. Gen'l Acc., Fire & Life Assur. Corp. (Colo.)... 291 337 417(7)-Findings of commission on fact held conclusive on appeal. McNeil v. Panhandle Lumber Co. (Idaho) 417 (7)-Court can determine whether board's findings are supported by evidence. Kirkley v. General Baking Co. (Mich.) 417 (7)-Finding of commissioner under act is conclusive. O'Neill v. Sioux City Terminal Ry. Co. (Iowa) 417 (7) Where there were no findings as to nature of decedent's employment, finding that accident was within act was reviewable. Wilson v. Dakota Light & Power Co. (S. D.)... 417 (7)-Findings of board conclusive if substantially supported. O'Donnell's Case (Mass.) 417 (7) 342 406 378 468 405 Relation of parties is question of fact. McDowell v. Duer (Ind.).. 364 417 (7)-Finding on evidence is conclusive. Pinyon Queen Mining Co. v. Indust. Comm. (Utah) 417 (7) Commission's finding on fact conclusive. Sun Coal Co. v. State Indust. Comm. (Okla.) 417 (7)-Findings on evidence creating "probability" not reviewable. ham Mines Co. v. Allsop (Utah). 478 443 Bing 473 417 (7) The court is bound by the findings of the Commission if there is any competent evidence in record to sustain them. Republic Iron & Steel Co. v. Indus. Comm. at al. (Ill.)................... 417(7) On appeal, only evidence tending to sustain the award will be considered-findings of Board have same force as findings of court and jury and are not to be set aside if there is evidence upon which they can rest. Gardiner v. Cochran Chair Co. (Ind.) 417 (7) In case of controverted facts tending to excuse failure to notify master of injury within 30 days, it is the province of chairman to determine those facts like any other issue of fact before him, and his finding is final, provided there is some competent evidence to support it, but on facts undisputed found by the chairman, the question whether written notice has been given is one of law. Wardwell's Case (Me.) 666 669 691 655 417 (7) The findings of the Industrial Commission on conflicting testimony is conclusive upon the courts. Hall v. Ind. Comm. of Colorado et al. (Colo.) 417 (7) When there is any evidence reasonably tending to support the order of the Commission, such order is final and conclusive on this court. Consolidated Fuel Co. et al. v. State Indus. Comm. et al. (Okla.)... 765 417 (7) It is well settied that the decision of the Commission as to all matters of fact is final, if there is any evidence tending to support it. Superior Smokeless Coal & Mining Co. et al. v. Bishop et al. (Okla.) 770 417 (7)-When there is any evidence reasonably tending to support the order of the State Industrial Commission, such order is final and conclusive on this court. Cameron Coal Co. et al. v. Dunn et al. (Okla.) 751 417 (7) The finding of the Department of Labor as to the date when the actual injury, disability and incapacity developed cannot be disturbed by the courts if there is any testimony, or legitimate inference therefrom, sustaining the conclusion, though the court might reach a different conclusion as triers of the facts. White v. Morgan & Wright (Mich.) 417 (7) Only questions of law are reviewable by the Supreme Court, and the findings of fact on competent evidence, are conclusive. Bryan v. Hudson Motor Car Co. et al. (Mich.). 727 694 713 417 (7) On review by certiorari of an award, if there is any legal evidence sustaining the finding, the Supreme Cout is not at liberty to set it aside. McCartney et al. v. Wood-Temple Co. (Mich.).. 417 (7)-Findings of fact by the Boad acting within its powers in the absence of fraud, are made conclusive, and the court is limited to determining as to whether there is any competent evidence to support the findings. Clifton v. Kroger Grocery & Baking Co. et al. (Mich.).... 697 417 (7) Good cause for failure to give notice of compensable injury held for jury. Consolidated Underwriters v. Seale (Tex.). 417 (7)-Finding of Commission, sustained by evidence, is conclusive. James O'Donnell Teaming Co. v. Industrial Commission (Ill.).. 417 (7)-Finding on evidence as to employment of claimant held conclusive. Hoosier Veneer Co. v. Ingersoll (Ind.).. 650 537 563 583 417(7)-Findings in case conclusive. Feldman's Case (Mass.) 417 (7)--Findings of fact in case held conclusive-court cannot weigh evidence in case. McAlester Colliery Co. v. State Ind. Comm. (Okla.) 638 417 (7)-Board's findings of fact held conclusive. Rusch v. Louisville Water Co. (Ky.) 575 417 (7)-Arbitrator's finding on question of compensable disability conclusive in absence of unfairness or misconduct. Kinzer V. Wyandotte County Gas Co. (Kan.).. 573 417 (7)--Finding of compensable loss of fingers held conclusive--finding of compensable loss of use of hand held conclusive. Ramondetta's Case (Mass.) 598 (8). Harmless error. 417 (8) Evidence in case held not prejudicial. Feldman's Case (Mass.)..... 583 (9). Determination and disposition of cause. 417 (9)-District court sustaining award for death of servant did not err in providing in judgment for issuance of execution upon weekly installments of compensation provided for therein, Lumbermen's Reciprocal Ass'n v. Warner (Tex.) 417 (9)-Case remitted for rehearing for additional findings. ett & Co. (N. Y.) 417 (9)-Award held properly reduced by reviewing court. ...... Stimal v. JewWilson & Co. v. Ward (Kan.) 417 (9) Limitation for transmission of record to commission held not abrogated by stay of execution-statute requiring transmission of record within 20 days is mandatory. General Chem. Co. v. Thomas (Colo.) 417 (9) When it is apparent that order of Commission is correct except on account of an oversight, a party is not given a credit to which he is entitled, or on account award is incorrect, this court will correct such an error in computation the amount of the oversight or error and with the correction so made affirm the order. Markham et al. v. State Indus. Comm. et al. (Okla.)... 417 (9)-Award reversed and matter remitted for absence of evidence and finding of issue of maritime employment. Hammonds V. Rock Plaster Coǝrp. (N. Y.) 417 (9)-Award for proportionate loss of hand reversed and matter remitted for rehearing. Doris v. James Butler, Inc. (N. Y.). 80 71 171 335 754 626 624 REVIEW OF JUDGMENT OF COURT ENTERED ON AWARD (1). Nature and form of remedy. 418 (1) Appeal lies to supreme court from judgment affirming or reversing award. McNeil v. Panhandle Lumber Co. (Idaho).. 418 (1) Courts have jurisdiction over certiorari to review award of Commission made without jurisdiction. Taylor Coal Co. v. Indust. Comm. (III.) ........ (2). Decisions reviewable. 418 (2) Decree required in case. Feldman's Case (Mass.). (3). Presentation and reservation of grounds of review. 418 (3) The defendant, having consented to the appointment of an arbitrator and having appeared before him without objection cannot now be heard for the first time to impeach the award because not filed within 66 days from the appointment-application for appointment having alleged proper notice of the injury and demand for compensation and no objection for lack of proof thereof being made in court below, none will be heard now. Casebeer et al v. Carbon Coal Co. (Kan.) 418 (3) Objection that the stenographer's report was not filed within time. required by statute is waived where the parties appear before the Commission and participate in proceedings. Illinois Glass Co. V Indes. Comm. et al. (Ill.) 342 553 583 681 660 418 (3) 418 (3) Employer, by appearing and participating in proceeding to review award of arbitrator without objecting to proceeding because of employee's failure to file transcript before arbitrator within the time limit, waived such objection. Jackson v. Indus. Comm. et al. (Ill.) 662 Objection to computation of compensation held not avoidable. Miller's Indem. Underwriters v. Green (Tex.). 645 418 (3) Objection to commission's jurisdiction of proceeding waived by appearance. Taylor Coal Co. v. Indust. Comm. (Ill.). 418 (3)-Objection to jurisdiction of Commission to review proceeding held too late. James O'Donnell Teaming Co. v. Industrial Comm. (Ill.). 537 418 (3) Objection to delay in filing transcript of arbitration proceedings held too late. Taylor Coal Co. v. Indust. Comm. (Ill.).. 418 (3) Objection to commission's jurisdiction of proceeding waived by appearance. Paradise Coal Co. v. Indust. Comm. (Ill.)... 418 (3)-Objection to jurisdiction of commission to review proceeding, held waived by appearance. Pocahontas Mining Co. v. Indust. Comm. (II.) 553 557 550 540 (3%). Transfer of cause. 418 (3%)-Writ of error held subject to dismissal for delay. General Chem. Co. v. Thomas (Colo.) 418 (5)-Award of lump sum rests in discretion of trial court. Miller's Indem. Underwriters v. Green (Tex.) 645 |