commerce.

(Iowa)

548

367

365

Des Moines Union Ry. Co. v. Funk, Industrial Com'r et al. True test as to whether plaintiff was engaged in interstate commerce is: Was he engaged in interstate transportation or in work so closely related to it as to be practically part of it. St. Louis I. M. & S. Ry. Co. v. True. (Okla.) Evidence showing railroad employee was injured while repairing locomotive used in pulling interstate train insufficient to show that rights of parties were controlled by privileges and obligations arising under federal liability Act. Chicago, R. I. & P. Ry. Co. v. Cronin (Okla.). Employee of interstate railway carrier, who is injured while removing snow from track over which interstate trains are being run regularly, is engaged in interstate commerce. Koofos v. Great Northern Ry. Co. (N. D.). 652 Member of switch engine crew, killed in movement of engine, without cars, going from setting one train containing interstate cars, to move another train also containing interstate cars, was engaged in interstate commerce. Wangerow v. Industrial Board et al. (I.). Servant was engaged in "interstate commerce" where injury occurred while on way to work which was in interstate commerce, to which he had been regularly assigned and which he had been performing for three weeks. Lindstrom v. New York Cent. R. Co. (N. Y.).... Watchman of railroad shops where engines used in interstate commerce_were repaired, held not engaged in interstate commerce. Wabash Ry. Co. v. Industrial Commission et al. (Ill.)...

Where insurer brings suit to set aside findings and award of Board, issue to be tried is, not collection of sum of weekly payments due under award, but determination of full amount of insurer's liability that might be recovered, where such amount is in excess of $500 the district court has jurisdiction. Georgia Casualty Co. v. Griesenbeck et ux. (Tex.).

Where claim was not within Act, Commission had no power or authority to approve compensation agreement entered into by employer and employee, pursuant to section 20, or to enforce its execution, since no act or acquiescence could confer jurisdiction on subject-matter. In re Hassen. Appeal of United States Casualty Co. (N. Y.). Board possesses only powers expressly granted, together with those arising from implication because necessary to full exercise of granted powers. Aetna Life Ins Co. v. Shively et al (Ind.)

Where servant had written agreement with master and insurer as to payment of award, but parties did not agree as to the time the servant was entitled to such payments, question was proper one for board. Adams v. W E. Wood Co. et al. (Mich.).. Industrial Commission being court of limited jurisdiction cannot take cognizance of application for order staying execution of judgment entered on its award brought by one who had not joined in any proceedings before it nor had questioned validity of its award prior to final adjudication and affirmance. Gamble v. Superior Court in and for Alameda County et al. (Cal.). Plaintiff, by appearing before Industrial Commission would not waive his right to object to jurisdiction where commission had no jurisdiction oversubject-matter, since parties in such case could not confer jurisdiction even by stipulation. Waldum v. Lake Superior Terminal & Transfer Ry. Co. et al. (Wis.).....

While Industrial Commission has power to determine whether policy still exists it must determine that question on recognized principles of law. Kold v. Brummer et al. (N. Y.)...

§ 3972.

439

514

435

801

181

261

311

686

671

351

Provision of Alaska Compensation Law, requiring employer who had been furnished by employee with names and addresses of his beneficiaries to notify them of his death, held to apply to employer which, with other companies, hired men through a common agent who was furnished with such statement. Alaska Treadwell Gold Mining Co. v. Crinis (U. S.).... 679 Statute providing that commission may issue subpoenas, compel production of books, etc.. contemplates that Commission may require report from employer of accidents. F. Eggers Veneer Seating Co. et al. v. Industrial Commission of Wisconsin et al. (Wis.)...

398. NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPENSATION.

Unauthorized agent acting for employer and insurer cannot waive Sec. 28, requiring claim to be filed with Commission within one year, so as to make waiver binding on parties to proceeding to obtain compensationemployer and insurer were not estopped to set up that Sec. 28, requiring claim to be filed within one year was not complied with, because insurer had paid medical bills for injured employee-injured employee is barred after one year. Twonko v. Rome Brass & Copper Co. et al.-Appeal of American Mut. Compensation Ins. Co. (N. Y.)..

That employer was represented at inquest showed employer had notice. Sulzberger & Sons Co. v. Industrial Commission of Illinois et al. (Ill.)....................

67

"Due notice" to employer of injury to servant being such notice as is re-
quired by Act, means a notice given in the manner and to appropriate
person specified-injured servant's informal statement in familiar style
as to injury received, directed and delivered to assistant foreman, with
request that servant's wages be paid to messenger, foreman not being
person to whom notice might be given, was not "due notice" to employer.
In re Colon. Appeal of American Linoleum Mfg. Co. et al. (N. Y.).... 180
Where agreement between injured servant and insurer has not been filled
with and approved by Board, servant cannot after six months from time
of injury proceed under Act as amended by section providing that if as-
sociation and servant fail to agree as to compensation, or disagree as to
continuance of payments, either party may notify Board, etc. Court-
ney's Case (Mass.)

.....

Though death of servant did not occur until nearly two years after accident,
and he failed to file claim as required, where under act requiring notice
within one year after accident, or, if death results, within one year
after death, claim of widow of servant filed day after death of husband is
within time. O'Esau v. E. W. Bliss Co. et al. (N. Y.)....
Knowledge of employee's injury on part of employer is substitute for written
notice and employer must have knowledge within time when written
notice should have been given-fact that subscriber did not give notice to
its employee that it was insured under act and that he did not have
knowledge of insurance until some months subsequent to injury, had
no effect on rights in relation to giving notice of injury, or claiming
excuse therefrom. Frier's Case (Mass.)...
Injured employee's statement to foreman that he had been hit in eye was in-
sufficient to give foreman knowledge of injury-notice need not give full
or exact description; notice that will enable employer to give medical
attention, etc., being sufficient-employer's actual knowledge need be
only such knowledge of injury as to apprise him of its nature and extent
-Statute requiring notice "as soon as practicable" should be given liberal
construction so as not to deprive meritorious claimant of compensation
-compensation will not be denied on ground of failure to give, or delay
in giving, employer notice of injury, where such failure or delay is due to
honest mistake and did not prejudice employer-where injury to em-
ployee's eye caused impairment of eyesight at time of accident and was
not aggravated by failure to receive prompt medical attention employee's
failure to give notice without delay was not prejudicial to employer and
therefore does not preclude recovery. Bates & Rogers Const. Co. et al.
V. Allen (Ky.)
To entitle applicant to participate in Compensation Fund he must have filed
application with Commissioner within six months after date of death or
injury of person on whose account claim is made-neither date of mail-
ing or posting of application nor date when by due course it should have
reached Compensation Commissioner can be treated as date of filing,
though such delay may have been due to existence of state of war not
between the United States and the country in which such application was
posted, statute not in terms suspending operation of statute of limitations
in such cases. Poccardi, Royal Consul of Italy v. Ott, State Compensation
Com'r (W. Va.).

309

651

638

719

547

Making of claim for compensation within six months after accident is essen-
tial to right to award-it need not be in writing but may be verbal and
it is sufficient if employer is informed by it that employee intends to
claim benefit of act. Moustgaard v. Industrial Commission et al. (Ill.). 600
There is distinction between the terms accident and injury as used in Com-
pensation Act. Leadbettor et al. v. Industrial Accident Commission.
(Cal.)
Notice of injury suffered by watchman at railway shops given to foreman
or superintendent is sufficient. Wabash Ry. Co. v. Industrial Commission
et al. (III.)

$ 400. PARTIES.

If claim was within jurisdiction of commission insurance carrier did not
need to be party to compensation agreement made pursuant to Sec. 20.
In re Hassen. Appeal of United States Casualty Co. (N. Y.)..........................
401. PLEADING.

That workmen's Law existed in state of Iowa at time of injury is
unimportant, it being matter of defense, to be pleaded and its applica-
tion shown. Nash v. Minneapolis & St. Louis R. Co. (Minn.)..
Where defendant did not plead that either deceased or employer were sub-
ject to Compensation Law, court did not err in refusing to allow defend-
ant to introduce testimony in support of defense that plaintiff, deceased's
wife, had filed her claim with Commission. Arkansas Valley Ry. Light
& Power Co. v. Ballinger (Colo.)
Where one of dependents of deccased sought award abandoned second para-
graph of its answer setting up willful misconduct defense was waived.
National Car Coupler Co. v. Marr et al. (Ind.)..

It is essential in bringing action for personal injuries at common law, that
it be made to appear from statement and show by evidence that defendant
had elected not to comply with provision of act. Reynolds v. Chicago
City Ry. Co. (Ill.)

Declaration which in substance alleged that defendant was engaged in elec-
trical work was not defective because it failed to allege that defendant

414

435

181

157

581

456

608

had not elected to be governed by act. Vose et al. v. Central Illinois Public Service Co. (Ill.)

$403.

.........

PRESUMPTIONS AND BURDEN OF PROOF. Burden of proving employment and injury is on claimant. Chicago Great Western R. Co. v. Industrial Commission of Illinois et al. (Ill.).. One claiming compensation had burden of proving injury complained of resulted from accident arising out of employment. New Castle Foundry Co. v. Lysher (Ind.)......

613

14

119

144

173

317

451

Burden of deceased employee's dependents to prove alleged injury to employee was sustained while he was alive and that death resulted therefrom and that injury arose out of employment. Dow's Case. In re American Mut. Liability Ins. Co. (Mass.). Under Act providing that failure to give prescribed notice of injury shall bar claim, unless excused on ground that employer has not been preJudiced thereby, there is a presumption which must be overthrown by claimant of prejudice from want of speedy opportunity to investigate question of accident. Andrews v. Butler Mfg. Co. et al. (N. Y.)...... Burden of showing that employee was guilty of willful misconduct rested upon employer. Indianapolis Light & Heat Co. v. Fitzwater (Ind.)... 284 Burden to establish claim rests on those seeking award, who may prove their case by circumstantial evidence, as other cases are established. Ginsberg v. Burroughs Adding Mach. Co. (Mich.) Burden rests upon servant to show facts from which conclusion may be properly drawn that injuries arose out of employment Hege & Co. et al. v. Tompkins et al. (Ind.)... When officer of corporation presents to secretary of state document and secretary of state accepts and files document whereby corporation elects not to come under Compensation Act, public has right to act upon presumption that document was authorized and burden is on corporation to prove that fact. Rickel v. Atchison, T. & S. F. Ry. C. (Kans.)...... Plaintiff seeking compensation has burden of showing injuries arose out of employment. Rish v Lowa Portland Cement Co. (Ia.)...... Burden on claimant to show that injury arose out of employment. Garage of La Salle v. Industrial Commission et al. (Ill.).. Burden rested on admininstratrix to prove that injury from which death occurred arose out of employment-admininstratrix had burden to establish facts that employee was using way which he had right to use and which is only available way, or as safe as any other. H. W. Nelson R. Const. Co. v. Industrial Commission of Illinois et al. (Ill.) Contention that presumption that person engaged in one of the hazardous occupations enumerated is subject to act, applies only between employer and employee and not against third party, cannot be sustained. Vose et al. v. Central Illinois Public Service Co. (III.). While dependency may involve principles of law it is a question of fact and burden of proving rests upon him who claims it. Benjamin F. Shaw Co. v. Palmatory et al. (Del.)....

Central

When the employee's body is found on employer's premises at or near regular place of work under circumstances indicating accident during hours of work, it may be fairly inferred that he was injured in course of employment, Flucker v. Carnegie Steel Co. (Pa.)....

708

463

428

605

613

424

780

246

396

679

In proceedings to recover for death of employee. killed by falling down stairway, evidence that deceased was habitually intemperate, was incompetent, where there was direct testimony that he was sober at time of accident. Lefens et al. v. Industrial Commission et al. (Ill)......... Report of accident pursuant to rules of practice of Commission is competent evidence in proceeding for compensation. F. Eggers Veneer Seating Co. et al. v. Industrial Commission of Wisconsin et al. (Wis.)... On issue whether deceased was employee of defendant the pay roll of another company made out by bookkeeper and which deceased did not sign nor see, properly excluded as immaterial. Alaska Treadwell Gold Mining Co. v. Crinis (U. S.) Written report concerning injury of employee made by another employee or manager at request of employer, containing statements regarding accident and injury which shows that statements are those of injured employee and are not admissions of employer, not admissible in evidence for purpose of proving that accident occurred, or of proving nature of injury. Lindsay v. Halstead Milling & Elevator Co. (Kans.).... Where it had been testified in behalf of employer that servant had wilfully attempted to climb side of moving motor truck, testimony in behalf of servant that another man had been injured about same time that servant was injured, admissible to show that witness of employer was testifying as to other occurrence. F. B. Beasman & Co. et al. v. Butler (Md.).... 478 Agreement to pay compensation, made after accident, is evidential of occurrence of accident and of right to recover compensation therefor, but not conclusive evidence nor estoppel to disprove accident, if made within year thereafter and in compensation suit it is error to exclude proof in denial of occurrence of accident, simply because of existence of such agreement. Burns v. Edison (N. J.).

Board not bound by technical rules of court procedure in civil actions, including those relating to hearsay evidence-master's report showing character of injury and that it was within scope of employment admissible

718

645

as statement by party primarily liable, notwithstanding its ex parte char-
acter and is not within hearsay rule-master's report must be held vol-
untary statement by master's adoption of printed portion where not ac-
companied by other explanation-admission by master in report to Board
that servant was injured in particular manner in course of his employ-
ment is admissible, though master based such report upon hearsay evi-
dence. Hege & Co. et al. v. Tompkins et al. (Ind.)..

Under express provisions of Compensation Law, hearsay declarations of de-
cedent admissible to find his death arose out of employment. Employers'
Liability Assur. Corporation, Limited, of London, England, v. Industrial
Accident Commission. (Cal.)
Industrial Commission may consider hearsay evidence, but no material finding
can stand, where based entirely on hearsay or incompetent evidence.
Garfield Smelting Co. v. Industrial Commission of Utah (Utah).
Not error to exclude testimony that plaintiffs had insured their employees
and that compensation awarded had been paid by insurance company.
Vose et al. v. Central Illinois Public Service Co. (Ill.)..
Under Law unsworn opinion evidence, given without notice to employer or
insurer that it was to be offered to Commission or that it was filed. and
without opportunity to interrogate such witness or to make further
proof to controvert such evidence, should not be considered by Commis-
sion and where it appears the findings and conclusion of Commission
was based on such opinion evidence award will be vacated and cause re-
manded. Flynn v. Ponca City Milling Co. et al. (Okla.)...

Award of Commission for death of employee under Compensation Act, based
on nothing but hearsay evidence as to happening of accident and resulting
injury cannot be sustained. Belcher et al. v. Carthage Mach. Co. et al.
(N. Y.)..
Findings of Commission must be supported by evidence and not based upon
mere conjecture. Bekkedal Lumber Co. V. Industrial Commission of
Wisconsin et al. (Wis.)

.......

Burden to establish claim rests on those seeking award, who may prove their
case by circumstantial evidence, as other cases are established. Ginsberg
v. Burroughs Adding Mach. Co. (Mich.)

If inference favorable to applicant can be arrived at by Board only by conjec-
ture or speculation, applicant may not recover and also must fail if there
are two or more inferences equally consistent with facts arising from es-
tablished facts. Ginsberg v. Burroughs Adding Mach. Co. (Mich.)
Evidence sustained finding of trial court that accident was not caused by in-
toxication. State ex rel. London & Lancashire Indemnity Co. of Am-
erica v. District Court of Hennepin County et al. (Minn.).
Where employee with defective eyesight lost part of hand in cutting machine,
where he had inadvertently placed it contrary to directions by employer,
evidence sustained finding that injury was not result of willful disobedi-
ence. Peru Basket Co. v. Kuntz (Ind.)...
Employer had knowledge within Section 20 that accident had been suffered,
though no report had been made. Leadbettor et al. v. Industrial Ac-
cident Commission (Cal.)..

Referee's conclusion as to manner of employee's death may be based on
circumstantial evidence. Flucker v. Carnegie Steel Co. (Pa.)...
Board may draw reasonable inferences from facts and circustances in evi-
dence. Hege & Co. et al. v. Tompkins et al. Ind.)..
Agreement to pay compensation, made after accident, is evidential of occur-
rence of accident and of right to recover compensation therefor, but not
conclusive evidence nor estoppel to disprove accident, if made within year
thereafter and in compensation suit it is error to exclude proof in denial
of occurrence of accident, simply because of existence of such agreement.
Burns v. Edison (N. J.)..

(2). Relation of parties.

451

407

531

613

519

166

212

317

317

337

627

414

780

451

645

Evidence sustained finding that employment of decedent as chauffeur was not
casual, though at time of accident he was merely on trial. Marshall
Field & Co., v. Industrial Commission of Illinois et al. (III.)............ 105
Evidence sufficient to sustain finding of Board that injured servant was in
employ of partnership against which he was proceeding. Scott v. O. A.
Hankinson & Co. et al. (Mich.)....

(4). Injury arising out of and in course of employment.
Evidence sustained award of Industrial Board to employee suffering hernia,
injured while lifting bale of wire. Puritan Bed Spring Co. v. Wolfe
(Ind.)
Where flour salesman, whose duty it was to solicit orders and telephone them
to his employer was struck by automobile while crossing street, evidence
held to justify finding that he was crossing street in order to solicit
from another customer and was still engaged in duties when struck.
Bachman v. Waterman (Ind.)........
Evidence together with proper inferences therefrom, held to sustain finding
that injury resulted from accident arising out of and in course of
employment. New Castle Foundry Co. v. Lysher (Ind.).
Evidence there was no causal connection between injury and tube.culosis

759

39

115

119

............

from which decedent died, held to support decision of Board in favor of insurer. McCarthy's Case (Mass.).......... Member of Board hearing case and full board, were not bound to accept conclusions of medical witnesses as to whether employee was dead when he fell on machine or whether living so that machine caused deathevidence sustained finding of Board that deceased employee was alive when he fell on machine. Dow's Case. In re American Mut. Liability Ins. Co. (Mass.)

141

144

168

199

232

Evidence held insufficient to show that servant's death from blood clot and pressure on brain was result of any injury received while in course of employment. Hansen et al. v. Turner Const. Co. et al. (N. Y.).. Evidence sustained judgment that loss of eyesight was caused by accident complained of, and not by pre-existing diseased condition. Nelson v. Industrial Insurance Department (Wash.). Evidence sustained finding that employee died from accident arising out of employment and not from injuries intentionally self-inflicted. Bekkedal Lumber Co. v. Industrial Commission of Wisconsin et al. (Wis.)........ 212 In proceeding for compensation for death of employee due to hypostatic pneumonia, evidence sufficient to support finding that death resulted from accident arising out of employment. Bergstrom v. Industrial Commission et al. (Ill.) Fact of injury or death of servant and that it occurred in connection with his employment so as to merit award may be shown by circumstantial evidence in proceedings for award for death of coal miner, held that there was evidence tending to show that death arose out of employment. Smith-Lohr Coal Mining Co. v. Industrial Commission et al. (Ïll)...... 250 Finding of Board that injury to servant, received while in employment of defendant and for which payments were being made under award, contributed to later injury received while on street car and was aggravated by it, held not unsupported by evidence. Adams v. W. E. Wood Co. et al (Mich.) 311 Where only witness in widow's proceedings for compensation for husband's death, who saw accident, testified falling box only struck husband's toe, but death was caused by blood clot in intestines which originated in thigh, testimony of husband's statements being only evidence that falling box struck thigh, award could not stand. Ginsberg v. Burroughs Adding Mach. Co. (Mich.)

Evidence sufficient to sustain finding of Board that injured employee, watchman at one building, had gone to another building of employer, where he was injured by falling down elevator shaft, on business of his own, 80 that he was not injured in course of employment. Borch v. Simon J. Murphy Co. (Mich.)... Evidence did not support conclusion of Board that deceased employed as watchman of third, fourth and fifth floors of building and found in dying condition at bottom of elevator shaft, which elevator he had been forbidden to use, was called to shaft by any duty, or was performing duty when he fell. Moyer v. Packard Motorcar Co. (Mich.)....... Evidence warranted finding that death arose out of employment by reason of blood poisoning alleged to have been caused by cut or scratch received by deceased while engaged in cleaning bull gear. McRae v. Morgan & Wright (Mich.) Evidence held sufficient to sustain finding that injury to arm was cause of pneumonia which resulted in death. Ft. Wayne Rolling Mill Corporation v. Buanno et al. (Ind.)..

Where captain of tugboat. after being discharged. returned to boat, ate dinner, and collected his effects, and later his body was found in vicinity of pier at which boat was tied up, evidence insufficient to warrant award against employer. In re Whalen. Whalen v. Stanwood Towing Co. et al. (N. Y.) Evidence showed injury to servant which developed into tuberculosis of bones was one arising in course of employment, fact that servant was predisposed to that affliction not changing result. Wabash Ry. Co. v. Industial Commission et al. (I11.)..

Facts surrounding accident held to warrant conclusion that death arose out of employment. Great Lakes Dredge & Dock Co. V. Totzke et al. (Ind.) In proceedings for death of woman store employee, evidence warranted finding of Board that employee fell because she struck her toe or heel against outer edge of top step-if deceased employee had fallen and received injury she did while actively engaged in performance of duties in employer's store and hazard of employment, though cause might rest in conjecture. Hallett's Case. (Mass.)....

317

746

756

748

626

510

435

448

481

Facts proven sufficient to warrant inference that servant watchman, guarding trench where gas was leaking, met his death from asphyxiation while engaged in performing duties assigned by master. Manziano et al. V. Public Service Gas Co. (N. J.) 488

322

Master liable though no one saw from what source flying piece of board which killed employee came-cvidence gufficient to sustain finding that injury in chest caused pneumonia resulting in death. Hanna v. Michigan Steel Castings Co. et al. (Mich.) Award of damages by referee and Board to piano mover's widow approved by court of common pleas on ground that deceased died from abscess brought about by violent exertion and strain and resulting pneumonia, sustained by evidence. Wolford v. Geisel Moving & Storage Co. (Pa.).. 798