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by the full board are, in absence of fraud, conclusive and binding as to all questions of fact. But if it is found on appeal that there is no evidence to warrant a finding of fact, the court may set aside the finding of fact made by the board."

As was said in Milwaukee Coke & Gas Co. v. Industrial Commission, 160 Wis. 247, 151 N. W. 245:

"If there is any substantial, credible evidence supporting the findings of the commission, the courts cannot interfere."

This is the general rule even under laws, where the intention of the Legislature is not as clearly expressed as it is here. The Wisconsin act is quite similar to the Kentucky law in this particular, as will be seen from the following statement of the Wisconsin court in the case of the City of Milwaukee v. Industrial Commission, 160 Wis. 238, 151 N. W. 247:

"As a preliminary to a determination of each one of the questions raised, it is proper to again call attention to the fact that, in the absence of fraud, the findings of fact made by the industrial Commission are conclusive, and its order or award can be set aside only upon the ground: (1) That it acted without or in excess of its powers; (2) that it was procured by fraud; or (3) that its findings of fact do not support the order or award. * * * International Harvester Co. v. Industrial Commission, 157 Wis. 167, 147 N. W. 53 [Ann. Cas. 1916B, 330] 5 N. C. C. A. 822. But it should be borne in mind that, if in any reasonable view of the evidence it will support either directly or by fair inference the findings made by the commission, then such findings are conclusive upon the court. ** It was not the scheme of the act to make the court a reviewer of facts. Its office is to relieve against fraud, to keep the commission within its jurisdictional bounds, and to correct an award not supported by the facts found."

*

In support of the rule that the findings of fact by the board, if supported by evidence, are conclusive upon the courts, the following cases are cited: Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489; Milwaukee Western Fuel Co. v. Ind. Comm., 159 Wis. 635, 150 N. W. 998; Poccardi v. Public Service Comm., 75 W. Va. 542, 84 S. E. 242, L. R. A. 1916A, 299; Hotel Bond Co.'s Appeal, 89 Conn. 143, 93 Atl. 245; Cain v. Nat. Zinc. Co., 94 Kan. 679, 146 Pac. 1165, 148 Pac. 251; Johnson's Case, 217 Mass. 388, 104 N. E. 735; Weber v. American Silk Spinning Co., 38 R. I. 309, 95 Atl. 603, Ann. Cas. 1917E, 163; Buckley's Case, 218 Mass. 354, 105 N. E. 979, Ann. Cas. 1916B, 474: Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 N. W. 665, L. R. A. 1916A, 22, Ann. Cas. 1916A, 386; Goldstein v. Center Iron Works, 167 App. Div. 526, 153 N. Y. Supp. 224; Sexton v. Newark Dist. Telg Co., 84 N. J. Law, 85, 86 Atl. 451; Nelson-Spelliscy Imp. Co. v. Dist. Ct., 128 Minn. 221, 150 N. W.

623.

One of the primary purposes of the act was the establishment of a board which would summarily determine all questions of fact, and afford ready relief to claimants; another object to be accomplished was the settlement of claims by a method in the nature of arbitration instead of by prolonged litigation; and a third reason was the relief of the courts, even where appealed to, from the necessity of passing upon questions of fact. It is the duty of the board to make, findings of fact, and if there be competent and credible evidence tending to support the award, or finding of fact, it, like the verdict of a properly instructed jury, will not be disturbed by a court in review. The courts of Wisconsin, California, Michigan, New York, and perhaps other states hold that, if there be competent, credible evidence supporting the award, a reversal cannot be had upon this ground, athough other evidence wholly incompetent in courts of law be received by the board. Long ago we adopted the rule of giving the same weight to the finding of fact of a court, where both the law and facts are submitted to it, as to the verdict of a properly instructed jury. Cincinnati Grain Co. v. L. & N. R. R. Co., 146 Ky. 237, 142 S. W. 374; Excelsior Coal Mining Co. v. Gatliff, 69 S. W. 798, 24 Ky. Law Rep. 682; Board of Trustees v. Morris, 71 S. W. 654, 24 Ky. Law Rep. 1420. We perceive no material distinction between a finding of fact required to be made by a compensation board and that of a court or jury, and we believe such finding of fact of the board is entitled to the same weight as that of a properly instructed jury. This we conceive to be une general rule adopted by courts throughout the states of this country where the Workmen's Compensation Law is in force. A contrary rule is universally applied with reference to the findings of law by the board.

[15] By section 102 of the act it is provided that the rule of law requiring strict construction of statutes in derogation of the common law shall not apply to this act. The courts generally have held that the common-law rules applicable in negligence cases have no place in this procedure. The act is complete and provides a plan for its enforcement. Corpus Juris, p. 40, says:

"The courts have been practically unanimous in according to the Workmen's Compensation Acts a broad and liberal construction in order to effectuate their evident intent and purpose, although in some decisions it has been held that, being in derogation of the common law, they must be strictly construed. Under the rule of liberal construction, however, the courts cannot go to the extent of judicial legislation; the words employed must be given their ordinary meaning, separate provisions must be construed in the light of the statute as a whole, and conflicting provisions reconciled as far as possible, but where the language is plain, it must be given its evident effect."

It would seem to follow, therefore, that this act must be liberally construed with a view to effectuating the intention of

its framers. As was aptly stated in the case of the Commonwealth v. Herald Publishing Co., 128 Ky. 424, 108 S. W. 892, 32 Ky. Law Rep. 1293, 16 Ann. Cas. 761, "The spirit of the law, and not the letter, should control its construction, and the object to be accomplished should be considered," has application here. While we have no adjudged cases of our own to guide us in the construction and enforcement of this act, we have carefully considered a great number of opinions and decisions from other jurisdictions with a view of getting at the spirit as well as conforming to precedent established by courts which have had occasion to consider similar questions. The text and notes of Cyc. Corpus Juris. Negligence and Compensation Cases Annotated. Dosker's Work on Compensation, and other like treatises will be found very helpful. The annotations found under the subject of Workmen's Compensation in 1916A, 1916B, 1916D, 1917E. 1917F, and 1918A, L. R. A., comprise a great number of cases shedding light upon the subject.

Having reached the conclusion that Phil Hollenbach, Jr., came to his death through accident arising out of and in the course of his employment, and that the evidence fully supports the award, it follows that the dependents, the widow and infant child, are entitled to compensation, and the judgment is affirmed.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

MIDDLESEX.

GAYTON

V.
BORSOFSKY.*

1. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-CONTRIBUTORY NEGLIGENCE - ASSUMPTION OF

RISK.

Where an employer was not insured under the Workmen's Compensation Act (St. 1911, c. 751), by part 1, § 1, he cannot avail himself of contributory negligence or assumption of risk on the part of his injured servant.

(For other cases, see Master and Servant, Dec. Dig. § 356.)

2. MASTER AND SERVANT—INJURIES TO SERVANT-NEGLIGENCE—QUESTION FOR JURY.

In an action by a 12-year old boy against his employer for injuries when, by the employer's sudden starting of a horse without giving * Decision rendered, May 25, 1918. 119 N. E. Rep. 831.

customary warning, the boy's foot was jerked out of the wagon and caught in a wheel, question of the employer's negligence held for the jury. (For other cases, see Master and Servant, Dec. Dig. § 286[11].)

Exceptions from Superior Court, Middlesex County; Frederick Lawton, Judge.

Action of tort by George Ray Gayton, by next friend, against Sam Borsofsky. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

Edw. H. Savary, of Boston, for plaintiff.

Samuel Sigilman, of Boston,, and Wendell P. Murry, of Boston, for defendant.

DE COURCY, J. [1] After a verdict for the plaintiff we must assume that the jury believed the testimony most favorable to him; and on the evidence they could find the following facts: The plaintiff, a boy of twelve years, was employed by the defendant as a helper on his peddler's wagon, and was injured on the first day of his employment. Across the rear end of the open wagon was a box containing fish, at the front end were barrels of apples and boxes of vegetables, and in the midle were bags filled with potatoes. At the time of the accident the plaintiff, as directed by the defendant, was sitting on the end of a box in the middle of the wagon, in order to see that the goods did not fall off, and that children did not steal them. This box rested on a partly filled potato bag, and the plaintiff's right foot rested on the "deckboard," where the floor projected from the side of the wagon. The defendant unexpectedly started up the horse, without giving the plaintiff the customary warning; and the boy's foot was jerked out and caught in the revolving wheel.

[2] No question of pleading arises. As the defendant was not insured under the Workmen's Compensation Act, he cannot avail himself of contributory negligence or assumption of risk on the part of the plaintiff. St. 1911, c. 751, p. 1, § 1; Bernabeo v. Kaulback, 226 Mass. 128, 115 N. E. 279.

[3] The only issue on liability was that of the defendant's negligence and on that the plaintiff was rightly permitted to go to the jury.. Moloney v. Pemberton Co., 219 Mass. 460, 107 Ñ. E. 388. See Kean v. N. Y. Central & Hudson River Railroad, 210 Mass. 449, 97 N. E. 64; Keating v. Hewatt, 212 Mass. 577, 99 N. E. 479.

Exceptions overruled.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

SUFFOLK.

IN RE MORAN.*

COMPENSATION

1. MASTER AND SERVANT - WORKMEN'S ACT-MOTION TO DISMISS APPEAL—JURISDICTION OF SUPERIOR COURT.

Under Rev. Laws, c. 173, § 115, as amended by St. 1915, c. 111, the superior court had jurisdiction of motion by a workmen's compensation insurer to dismiss the employee's appeal for want of prosecution, or because not entered "forthwith" in the Supreme Judicial Court, as required by Rev. Laws, c. 159, as amended by St. 1911, c. 284.

(For other cases, see Master and Servant, Dec. Dig. § 418[3%].) COMPENSATION

2. MASTER AND SERVANT - WORKMEN'S ACT-APPEAL-DELAY.

Where the employee's appeal from decree of the superior court, entered May 14th, was not entered in the Supreme Judicial Court until August 6th, pending which entry motion had been filed by the insurer in the superior court to dismiss the appeal for want of prosecution, or because not entered in the Supreme Judicial Court forthwith, and, after entry of the appeal in the. Supreme Judicial Court, the insurer moved the appeal be discharged, and the case sent back to the superior court for diminution of the record, the matters alleged relating to the motion to dismiss the appeal, which motion was denied after hearing, the insurer's motion, at argument on the merits, that the appeal be dismissed, because not entered "forthwith," as required by Rev. Laws, c. 159, § 19, as amended by St. 1911, c. 284, must be denied.

(For other cases, see Master and Servant, Dec. Dig. § 418[3%].) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION. ACT-AWARD OF LUMP COMPENSATION TO MINOR-RE

VIEW.

The finding of the Industrial Accident Board, on application of an injured minor employee awarded weekly compensation, for payment of a lump sum, made upon evidence which might have supported a somewhat larger award, but whose weight and credibility was wholly for the consideration of the board, cannot be disturbed, though no specific award was made for a period of about 10 weeks a matter doubtless taken into account in making the order as to the lump sum.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

Appeal from Superior Court, Suffolk County.

Proceeding under the Workmen's Compensation Act by Thomas E. Moran, employee. opposed by the Stafford Company, employer, and the Employers' Liability Assurance Corporation, Limited, wherein the employee contested the award of the Industrial Accident Board in the superior court. From the decree in accordance with the report of the Accident Board, the employee appeals. Affirmed.

Philip P. Coveney, of Boston, for appellant.

Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of counsel), for appellee insurer.

* Decision rendered, June 25, 1918. 119 N. E. Rep. 956.

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