no cause of action arising from injuries resulting in death is affected by any provision of the act. Making the award prior to the death of the injured employee is not sufficient to make the various provisions of the act applicable to such injuries after death ensues. The jurisdiction of the Industrial Commission depends upon the terms of the act, and, having lost jurisdiction by the death of the employee, it follows that this court loses jurisdiction of the appeal.

Therefore the motion to dismiss the action must be sustained.

All the Justices concur, except Kane, J., who dissents, and Turner, J., not participating.

SUPREME COURT OF PENNSYLVANIA.

WISE

V.

BOROUGH OF CAMBRIDGE SPRINGS.*

3. MASTER AND SERVANT—WORKMEN'S COMPENSATION ACT-APPEAL FROM DECISION OF REFEREE-JURISDICTION OF WORKMEN'S COMPENSATION BOARD.

Under Workmen's Compensation Act, § 419, permitting an appeal from referee's decision to Workmen's Compensation Board only when taken within 10 days after notice of referee's action has been served on parties, the board, where an appeal has not been taken within such time cannot allow an appeal nunc pro tunc as of a time prior thereto.

(For other cases, see Master and Servant, Dec. Dig. § 416.)

4. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT--APPEAL FROM REFEREE-REVIEW.

If Workmen's Compensation Board improperly allows appeal from decision of referee, and affirms decision, Common Pleas Court has no jurisdiction upon appeal to reverse referee's decision and dismiss claim.

(For other cases, see Master and Servant, Dec. Dig. § 417[9].)

Appeal from Court of Common Pleas, Crawford County.

Proceeding by Elizabeth Wise against the Borough of Cambridge. Springs, brought before the Workmen's Compensation Board, which, on appeal by the United States Fidelity & Guaranty Company, insurer, affirmed the referee's award to claimant. From an order of the common pleas, reversing the decision of the board and dismissing the claim, claimant appeals. Appeal sustained, and award of referee affirmed.

Argued before Brown, C. J., and Mestrezat, Potter, Stewart, Moschzisker, Frazer, and Walling, JJ.

Frank J. Thomas and John A. Northam, both of Meadville, for appellant.

J. Roy Dickie, of Pittsburgh, Albert L.-Thomas, of Meadville, and Wm. W. Wishart, of Pittsburgh, for appellee.

BROWN, C. In 1916 Roy Wise a sepcial policeman in the service of the borough of Cambridge Springs, this state. On September 21st of * Decision rendered, July 17, 1918. 104 Atl. Rep. 863.

that year an automobile filled with passengers was stalled on a railroad crossing over one of the streets of the borough, and, in attempting to push it off, he was struck by a train, sustaining injuries which resulted in his death. His widow filed a claim against the borough before the Workmen's Compensation Board, and a referee awarded her $2.017.30. An appeal was taken from this to the board by the United States Fidelity & Guaranty Company, the insurance carrier, and the award of the referee was affirmed. From the action of the board the insurance carrier and the borough appealed to the court below, which set aside the award to the widow. on the ground that her husband was not an "employee" of the borough within the meaning of the Workmen's Compensation Act. On her appeal from the action of the court below disallowing her claim, she assigns several reasons for reversal, but only one need be considered, as it is conclusive of her right to have the award of the referee sustaned.

[1-3] The right of appeal to the compensation board from an award or disallowance of compensation by a referee is given by section 419 of the Workmen's Compensation Act of June 2, 1915 (P. L. 736). If not so allowed it would not exist, and it is permitted only if taken "within ten days after notice" of the referee's action. In this proceeding the borough of Cambridge Springs and the United States Fidelity & Guaranty Company both appeared by their attorneys before the referee in opposition to the claim of the appellant. On December 6, 1916, he filed his award. On the 30th of the same month-24 days thereafter-the appeal was taken from it by the insurance carrier to the Compensation Board. On January 24, 1917, when the case was called for hearing before that board, this appellant moved that the appeal be stricken off, because it had not been taken within the time prescribed by the statute. This motion was refused by the board in an opinion filed on the 21st of the following March, the reason assigned for its action being that it had been "liberal in allowing appeals nunc pro tune when it appears that one of the parties in interest has not had full notice of the findings and award of the referee." It is to be noted that the allowance of an appeal from the action of a referee is not one of the functions of the board. It has nothing to do with the allowance of an appeal, which is a matter of right under the statute, if taken in accordance with its provisions. All the board has to do with it is to pass upon it when properly taken. If the board can allow an appea! nunc pro tunc, there would be no limit to the time within which an appeal could be taken, though the act of assembly expressly limits it.

The right of the insurance carrier to appeal after the statutory period had expired was challenged by the widow of the deceased at the very threshold of the proceeding before the compensation board, and even if the board could have allowed the appeal nunc pro tunc, it ought not tc have done so in view of the testimony taken before it on the motion to strike off. J. A. Boland, the solicitor of the borough of Cambridge Springs, testified that he had had charge of the proceedings on behalf of the borough;, that at the hearing before the referee, E. J. Stetson, a local attorney, appeared for the United States Fidelity & Guaranty Company, the insurance carrier, and conducted the proceeding for it; that on December 12, 1916, he and the attorney for the insurance carrier received the findings of the referee, and on the 13th or 14th of the same month the said E. J. Stetson came to his office, when he handed him the finding in the matter that after examining it Stetson handed it back to him; that Stetson, being attorney of record in the case, he considered the notice of the award was properly served on him; that Stetson read the award over, and that they discussed the advisability of taking an appeal or any further action in the case. Here is a distinct statement by the borough solicitor, not questioned by the attorney for the insurance carrier, that it had notice through him of the award more than 15 days before its appeal was taken, and as it was too late to be of any avail the Compensati powerless to recognize it.

Board was

"Where a statute fixes the time within which an act must be done, as, for example, an appeal taken, courts have no power to extend it, or to allow the act to be done at a later day, as a matter of indulgence. Something more than mere hardship is necessary to justify an extension of time, or its equivalent, an allowance of the act nunc pro tunc." Schrenkeisent et al. v. Kishbaugh, Coslett et al., 162 Pa. 45, 29 Atl. 284.

In Singer v. Delaware, Lackawanna & Western Railroad Co., 254 Pa. 502, 98 Atl. 1059, the court allowed an appeal from the report of a board of viewers in condemnation proceedings more than thirty days after it had been filed. A motion by the railroad company to strike it off was refused, and an issue framed, which resulted in a verdict for the plaintiff in three times the sum awarded her by the viewers. On appeal from the judgment entered on the verdict the sole question was as to the power of the court to allow the appeal from the report of viewers more than thirty days after it had been filed. In holding that it possessed no such power, we said, in reversing the judgment in favor of the plaintiff :

"Act April 9, 1856 (P. L. 288), § 3, provides that, 'upon the report of said viewers, or any four of them, being filed in said court, either party, within thirty days thereafter, may file his, her or their appeal from said report to the said court.' In the present case the 30 days expired on October 17, 1913, while the appeal was not taken until November 8th. In Harris v. Mercur, 202 Pa. 313, this court, speaking by Mr. Justice Mestrezat, said (page 317 [51 Atl. 969,]): If we are correct in holding that the act of April 22, 1874 (P. L. 109), required the appellant to file his exceptions within 30 days after he had received notice of the filing of the court's decision, the order of the court below in permitting exceptions to be filed thereafter was without authority and hence without effect or validity. The commands of a statute cannot be waived or dispensed with by a court. They require implicit obedience as well from the court as from its suitors: Jackson ex dem. Bleecker v. Wiseburn, 5 Wend. (N. Y.) 136. "It has been repeatedly held," says Mr. Sedgwick (Construction of Statutory and Consitutional Law, 277, 2d Ed.) "that courts have no dispensing power, even in matters of practice, when the Legislature has spoken. Thus, where a statute declares that a judge at chambers may direct a trial if application is made within ten days after judgment, it has been said that he can no more enlarge the time than he can legislate in any other matter.' When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice.' Under the act of 1856, the period of 30 days allowed for taking an appeal from an award of viewers runs from the date of the filing of the report, not from its confirmation. Gwinner v. Lehigh & Del. Water Gap R. R. Co., 55 Pa. 126. Where a party has been prevented from appealing by fraud, or by the wrongful or negligent act of a court official, it has been held that the court has power to extend the time for taking an appeal. Zeigler's Petition, 207 Pa. 131 [56 Atl. 419]; York County v. Thompson, 212 Pa. 561 [61 Atl. 1024]. But where no fraud or anything equivalent thereto is shown such appeals cannot be allowed. Dunmore Borough School District v. Wahlers, 28 Pa. Super. Ct. 35; Guyer v. Bedford County, 49 Pa. Super. Ct. 60. The mistake or neglect of the attorney for the party desiring to appeal is not suffifficient ground for relief: Ward v. Letzkus, 152 Pa. 318, 319 [25 Atl. 778].”

[4] From the time this appellant protested in limine before the Compensation Board that the appeal from the award of the referee had been taken too late, it was prosecuted with due notice of its invalidity, and if that board had no jurisdiction of it-and it certainly had not-the court below had none on appeal from its action. ...

For the reason stated, this appeal is sustained, and the award of the referee affirmed.

SUPREME COURT OF WASHINGTON.

NELSON
V.

INDUSTRIAL. INSURANCE DEPARTMENT. (No. 14543.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATIONEVIDENCE--SUFFICIENCY.

In a proceeding for compensation under Workmen's Compensation Act, evidence heid to sustain a judgment that the loss of eyesight was caused by the accident complained of, and not by a pre-existing diseased condition.

(For other cases, see Master and Servant, Dec. Dig. § 405[4].)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— FEES OF EXPERT WITNESSES.

In a proceeding under Workmen's Compensation Act, the allowance of $45 to an expert medical witness was not justified under Rem. Code 1915, § 6604-20, authorizing the court to allow fees of medical and other witnesses out of the administration fund.

(For other cases, see Master and Servant, Dec. Dig. § 420.)

Department 2. Appeal from Superior Court, Clarke County; R. H. Bach, Judge.

Proceedings under the Workmen's Compensation Act (Laws 1911, p. 345) by N. E. Nelson. From an order of the Industrial Insurance Department, granting an award as for permanent partial disability, the Insurance Department appeals. Modified and affirmed.

W. V. Tanner, of Olympia, and Howard Waterman, for appellant. Henry Crass, of Vancouver, for respondent.

CHADWICK, J. This case comes to us on appeal from a judgment of the superior court overruling an order of the Industrial Insurance Department, granting respondent an allowance for permanent partial disability.

Respondent was injured in an accident on a logging railroad. He claims the loss of the sight of one eye. The court made findings as follows:

"That prior to the accident plaintiff's eyesight was good, and he was not afflicted with optic atrophy.

"That at the time of the injury plaintiff complained of severe pain in his head over the left eye, which pains continued for some time, and to a certain degree up to the time of the trial.

"That shortly after the injury, the sight of the left eye began to fail and decrease rapidly, and at the time of the trial plaintiff was practically blind in the left eye.

"That shortly before the accident plaintiff could use one eye as well as the other, and there was no difference in the sight of either.

"That as a result of the injury, plaintiff has sustained the practical total loss of vision in the left eye.'

The physicians called in behalf of the department testify positively that the loss of the sight of respondent's eye could not have resulted from * Decision rendered, Nov. 20, 1918. 176 Pac. Rep. 15.

the injury received in the accident; that respondent is suffering from a primary optic atrophy; that primary atrophy is not due to inflammatory processes, nor is it the result of an injury; that if there has been an atrophy of the optic nerve due to such causes it is called secondary atrophy; that it is likely that respondent, being afflicted with true or primary optic atrophy was not aware of his condition, which must have existed for some time before the accident although not discovered until after he had been injured. On the other hand, professional men testifying on behalf of respondent advance the opinion that there may have been some injury of the optic nerve; that it is almost impossible to make a positive diagnosis in a case like this; that no one can say definitely whether an atrophy of the optic nerve is prmary or secondary, without considering the history of the case, and that there is no specific rule to positively determine what has caused the condition. One of the doctors suggests that the learned discourse about primary and secondary atrophy is "dictionary definition pure and simple," and that the term "primary atrophy" is often used for convenience to cover ignorance of the true causes. The doctors, as is sometimes the case, have disagreed. Their opinions cannot be reconciled. The testimony of the respondent is that he was a carpenter by trade, that up to the time of the accident he used either eye as convenience dictated, and that there had been no trouble with or diminution of his vision. A neighbor testified that about a year before the accident he was with respondent when he was shooting hogs and that he could shoot from one shoulder as well as the other, and that he never complained about his eyesight.

[1] One of the first inquiries made by oculists in cases of atrophy of the optic nerve is whether the patient has ever been afflicted with lues or any germ-carrying disease. There is no evidence that respondent was ever so afflicted. He denies that he was ever the victim of any such condition. These physical facts, coupled with the opinion of reputable oculists that the condition may have resulted from the accident is enough to sustain the judgment of the court below.

[2] The trial judge allowed a fee of $45 to one of the medical witnesses who came from Portland, Or., fo attend the trial. It is the contention of respondent that this allowance is proper under Rem. Code, § 6604-20, which provides that the court may allow an attorney's fee, "and the fees of medical and other witnesses and the costs shall be payable out of the administration fund, if the accident fund is affected by the litigation."

There is no provision of the law that will warrant the payment of extraordinary fees to expert witnesses as such. It was formerly provided in section 25 of the original act of 1911 (Laws 1911, p. 371) that—

"Upon the appeal of any workman from any decision of the department affecting the extent of his injuries or the progress of the same, the court may appoint not to exceed three physicians to examine the physical condition of the appellant, who shall make to the court their report thereon, and they may be interrogated before the court by or on behalf of the appellant in relation to the same. The fee of each shall be fixed by the court but shall not exceed ten dollars per day each."

This section was expressly repealed by section 10, c. 188, Laws 1915, at which session of the Legislature it was provided "that fees of medical and other witnesses and the costs shall be payable out of the administration fund."

We think it is hardly within any rule of statutory construction to say that it was the intention of the Legislature to leave the fixing of witness fees to the discretion of the court.

"At common law costs were not recoverable eo nomine. * Costs can therefore be recovered only in cases where there is statutory authority therefor." 15 C. J. 21.