warranted relief. Karoly v. Industrial Commission of Colorado et al. ...... Error assigned on abuse of discretion in award of lump sum judgment instead 386. .... DEATH BENEFITS. (1). In general. Partially dependent mother of deceased painter, whose average weekly wage (2). Deductions. In deciding whether parent is wholly or partially dependent on wages of 98 293 657 700 151 224 240 (4). Commutation of payments and award of gross sum. Agreement of employer, as a condition of being allowed to carry its own in- Under act workman so injured as to be entitled to compensation may, if dis- 661 512 255 388. PERSONS ENTITLED TO COMPENSATION FOR DEATH OF EM- In proceedings by deserted wife and by mistress of deceased, fact that wife mistress and deceased were wholly dependent upon him did not necessitate disposal of case under act, as though there were no dependents, on theory that condition was one not contemplated by statute-deserted wife, who had subsequent to her desertion been guilty of adultery, is not a "dependent"-illegitimate children of deceased employee living with decedent and their mother are "dependents" of decedent within the act as part of his family; a "family" being a collective body of persons who live in one house under a head or manager who has legal or moral duty to support. Scott's Case (Me.).. To entitle parents of deceased to compensation for his death sufficient if he contributed to their support within four years prior to time of injury and they need not have been dependent on him. Humphrey et al. v. Industrial Commission of Illinois et al. (Ill.).. To entitle parents of deceased employee who died during minority as result of injury caused by employment to compensation it is not necessary that contribution of minor was in excess of expenses or that contrabution to parents had any regularity-it is duty of parents to support minor children until they reach age of majority and minor child "contributes to support of its parents" within the act when it contributes substantial sum to support of family. etc. Metal Stamping Corporation v. Industrial Commission et al. (Ill.).. 49 102 258 250 282 643 527 Wife can claim support if husband was under legal obligations to support her, although they were not living together at the time and wife was not dependent on him for support. Smith-Lohr Coal Mining Co. v. Industrial Commission et al. (Ill.).... Dependency of 13 year old daughter of deceased, not presumed to be conclusively dependent, is to be determined as question of fact upon consideration of father's legal obligation under divorce decree ordering payment for her support, or moral obligation, and whether order would be discharged or enforced. Schwartz v. Gerding & Aumann Bros. et al (Ind.) Daughter of deceased servant, over 18, married and living with her blind husband, she herself being totally blind and therefore physically incapacitated from earning, was entitled to equal share in death benefit with surviving widow. Gavaghan's Case. In re Employers' Liability Assur. Corporation, Limited (Mass.).. Father, partially dependent upon wages of son, could participate in compensation allowed, though son left totally dependent widow, father being entitled to part of award proportionate to his part of total contribution to support father and wife made by son. Penn et al. v. Penn. (Ky.).... 634 Award to widow does not preclude award also to minor children. Wolford v. Geisel Moving & Storage Co. (Pa.).. 798 "Dependency" means reliance for support upon workman's earnings at time of injury resulting in death and not at any time thereafter. Newton v. Rhode Island Co. (R. I.).. Word "widow" since it is not defined by act is to be given its ordinary meaning, which is "a married woman whose husband is dead"—although claimant and deceased had lived together for about six years under belief that they were lawfully married, where there was no compliance with statute further than to make out two of three affidavits for license, claimant was not "widow" of deceased within act-though claimant believed she was lawfully married she was not a "dependent." Meton v. State Industrial Insurance Department (Wash.)... Where deceased workman leaves widow and minor children award should be made in favor of children to begin after award to widow ceases and to continue until each child reaches 16 years of age. Irvin v. William M. Frost & Co. et al. (Pa.).... Persons in enumerated classes may be wholly or partially dependent and come within contemplation of provisions, if dependency existed at time of injury-one claimed to be dependent must show that contributions were relied upon for living-"support" as applied to "dependency" is broader than food, clothing, etc., and includes all means of living-condition of health of claimant and need for medical attention, etc., are proper subjects for consideration in determining question of dependency. Benjamin F. Shaw Co. v. Palmatory et al. (Del.)... Beneficiaries as well as apportionment must be determined by Compensation Act and not statutes governing recovery of damages for wrongful death. Vaughan et al. v. Southern Surety Ins. Co. (Tex.).. § 389. SUBROGATION TO RIGHTS OF INJURED EMPLOYEE. Under section providing for adjustment of compensation where employee is injured by act of third person, the employee, after employer has indemnifted himself by suing third person, is entitled to entire balance' of judgment recovered if more than sufficient for such indemnification-employer may sue for entire damages either in his own name or that of his employee, or may continue any suit begun in name of such employee after liability is fixed-court may by order distribute proceeds as between employee and employer. Gones v. Fisher (I.). Compensation Act permits ascignment of injured person's right of action against tort-feasor not previously sanctioned by law and provides that making by injured employee of lawful claim under act against employer and latter's insurer shall operate as transfer of legal title to his claim for damages against tort-feasor to employer or latter's insurer-use of word "subrogated" did not render right of action against tort-feasor 541 526 42. 386 596 acquired by employer's insurer, which paid claim, an equitable cause of Where dependents of killed employee assigned the cause to insurance car- Decision of higher state court denying relief under New Jersey Act for $392. .... 574 339 403 -AUDIT OF CLAIMS INCURRED OR PAID BY BOARDS OR COM- Where assignment or change of interest without endorsement was prohibited | 393. TERMINATION OF PAYMENTS. Where one entitled to compensation secured a determination and award for If award to widow ceases before decedent's children reach 16 years of age, In view of fact that no provision is made that remarriage of widow shall § 3932. 192 788 527 Where workman directed by master to one hospital, went to another and 420 377 414 Procedure for recovery of compensation under act not applicable to cases 395. WHAT LAW GOVERNS. Test of whether or not locomotive engineer was engaged in interstate com- V. -645 775 to Plaintiff, as station agent of defendant, was not, while attempting Test whether railroad employee is engaged in interstate commerce is whether 629 693 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. (Ill.) 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.)... 439 514 435 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.)........ 801 397: BOARDS AND COMMISSIONS. 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. 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.).... ...... 396 398. NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPENSATION. Unauthorized agent acting for employer and insurer cannot waive Sec. 28, requiring claim to be filled 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 in 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 38 "Due notice" to employer of injury to servant being such notice as is required 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.). Where agreement between injured servant and insurer has not been filed with and approved by Board, servant cannot after six months from time of injury proceed under Act as amended by section providing that if association and servant fail to agree as to compensation, or disagree as to tinuance of payments, either party may notify Board, etc. Courtney'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 insufficient 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 employee'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 mailing 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.). 180 309 651 638 719 547 Making of claim for compensation within six months after accident is essential 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 Compensation 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 414 435 181 workmen's Law existed in state of Iowa at time of injury is unimportant, it being matter of defense, to be pleaded and its application shown. Nash v. Minneapolis & St. Louis R. Co. (Minn.)...... .. 157 Where defendant did not plead that either deccased or employer were subJect to Compensation Law, court did not err'in refusing to allow defendant 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 paragraph 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 electrical work was not defective because it falled to allege that defendant 581 456 608 |