Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

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.).. 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.) 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 Iowa Portland Cement Co. (Ia.)... Burden on claimant to show that injury arose out of employment. Garage of La Salle v. Industrial Commission et al. (III.).. 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. (Ill.).. 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.)..

[blocks in formation]

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.)

613

14

119

7144

173

284

317

451

708

463

428

605

613

424

780

246

396

679

718

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. (Kanš.). 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

645

as statement by party primarily liable, notwithstanding its ex parte character and is not within hearsay rule-master's report must be held voluntary statement by master's adoption of printed portion where not accompanied by other explanation-admission by master in report to Board that servant was injured in particular manner in course of his employment is admissible, though master based such report upon hearsay evidence. Hege & Co. et al. v. Tompkins et al. (Ind.).. Under express provisions of Compensation Law, hearsay declarations of decedent 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 filled. and without opportunity to interrogate such witness or to make further proof to controvert such evidence, should not be considered by Commission and where it appears the findings and conclusion of Commission was based on such opinion evidence award will be vacated and cause remanded. Flynn v. Ponca City Milling Co. et al. (Okla.)..

[blocks in formation]

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.).........

of

Findings of Commission must be supported by evidence and not based upon
mere conjecture. Bekkedal Lumber Co. v. Industrial Commission
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.)..

451

407

531

613

519

166

212

317

317

337

627

414

on

780

Referee's conclusion as to manner of employee's death may be based circumstantial evidence. Flucker v. Carnegie Steel Co. (Pa.)... Board may draw reasonable inferences from facts and circustances in evidence. Hege & Co. et al. v. Tompkins et al. Ind.).. 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.)...

451

645

(2). Relation of parties.

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.)..
Evidence sufficient to sustain finding of Board that injured servant was in
employ of partnership againɛt which he was proceeding. Scott v. O. A.
Hankinson & Co. et al.. (Mich.).....

105

759

(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

39

115

119

..... 141

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.)

.....

199

212

232

... 144 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.)... .... 168 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.)... 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 Commisalon 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. (Ill).. 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.) Where only witness in widow's proceedings for compensation for husband's death, who saw accident, testifled 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, so 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 conlition 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. (Ill.)..

Facts surrounding accident held to warrant conclusion that death arose out of employment. Great Lakes Dredge & Deck 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.)....

250

311

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-evidence cufficient 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 plano 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

Evidence sustained finding that accident resulting in death of decedent,
traveling man in driving employer's auto on way home arose in course
of employment. State ex rel. London & Lancashire Indemnity Co. of
America v. District Court of Hennepin County et al. (Minn.)..
Evidence sustained finding that employee was injured by unexpected drop-
ping of truck into hole causing rupture. Schanning v. Standard Castings
Co. et al. (Mich.)...
Rupture caused by jerk and strain was an "accidental injury." Schanning
v. Standard Castings Co. et al. (Mich.).
Statement in employer's report of accident to Commission that elevator opera-
tor lost control of car, which fell, and that employee was in car and was
injured makes prima facie case in favor of injured employee-testimony
of physician sufficient to support conclusion that injury was proximately
caused by accident. F. Eggers Veneer Seating Co. et al. v. Industrial
Commission of Wisconsin et al (Wis.)

Unimpeached report of master to Board stating manner of accident and in-
jury to servant and that same is within scope of employment, together
with other evidence, sufficient to sustain Board's award. Hege & Co. et
al. v. Thompkins et al. (Ind.)...

(5). Dependents.

Evidence examined and found insufficient to sustain finding of plaintiff's par-
tial dependency on their 24 year old son for support. McGarvie et ux. v.
Frontenac Coal Co. (Kan.)..

Under evidence mother and youngest brother of deceased were not dependent
upon him for support at time of death. Wilkes et al. v. Rome-Wire Co.
et al. (N. Y.).
Evidence that deceased employee paid mother $8 a week when working,
which enabled her to run household, consisting of herself, husband, son,
daughter and to her children more easily than after she was deprived
of son's contribution, legally sufficient to show that mother was partially
dependent though husband was alive and not incapacitated. Grant et
al. v. Kotwall (Md.)...

337

331

331

396

451

46

174

735
Evidence is sufficient to sustain finding that claimant's father and mother
were dependent. Benjamin F. Shaw Co. v. Palmatory et al. (Del.).... 424
(6). Compensation.

Evidence held to show that injured employee verbally claimed compensation
within six-month period. Moustgaard v. Industrial Commission et al.
(Ill.)

[blocks in formation]

Special findings that plaintiff's disability is "about 50 per cent" and that he
would be able to earn in future "about 50 per cent" of usual wages, are
held to be finding of one-half disability and where, in such case, jury
by general verdict awards damages of about 63 per cent, judgment should
be reduced to recovery of one-half disability. Gadberry v. Hutchinson
Egg Case Filler Co. (Kansas)

§ 412.

APPEAL OR OTHER PROCEEDING FOR REVIEW.
Where judgment of common pleas court is supported by evidence it is under
Statute, conclusive and binding upon questions of fact. Kroog v. Key-
stone Dairy Co. (N. J.)

In suit by employers to recover compensation paid for employee's death,
due to contact with defendant's high-tension wires, where defendant
was engaged in occupation making it subject unless it elected to the
contrary, and proof showed that neither plaintiffs nor employee had made
any election, judgment will not be reversed because plaintiffs did not
prove that they and their employee had elected to be bound by act-
where proof showed defendant's wires not sufficiently insulated, admitting
coroner's verdict was harmless. Vose et al. v. Central Illinois Public
Service Co. (Ill.)...

IN GENERAL.

8 414.
Where employer and employee file their written agreement for compensation
with board and it is approved, jurisdiction of parties is thereby con-
ferred upon board. Adams v. W. E. Wood Co. et al. (Mich.)...
Proceedings before Commission are not to be hampered by useless formalities
or technicalities. F. Eggers Veneer Seating Co. et al. v. Industrial Com-
mission of Wisconsin et al. (Wis.). . .

- 600

415. RECEPTION OF EVIDENCE.
Though it was improper for Commission to base award on answers by ex-
perts to hypothetical question after case was adjourned, and on opinions
given by chief medical examiner outside hearing, such error was waived,
where on rehearing Commission adverted such evidence and employer-
and insurance carrier made no objection. Holmes v. Communipaw Steel
Co. et al. (N. Y.)

Statements of adjuster 'who appeared before Commissioner as representative
of both employer and insurer, to obtain, as prescribed by Statute approval
of voluntary compensation agreement to effect that deceased had been
struck on face with board or plank was properly considered by Commis-
sion in making his award. Riccio v. Montano et al. (Conn.)...

473

777

613

311

396

647

586

Employer's objection that report of accident which it had made was not formally offered in evidence is not well taken, since employer is fully aware of contents of report-if employer's report is incorrect employer shall call error to attention of Commission upon hearing. F. Eggers Veneer Seating Co. et al. Industrial Commission of Wisconsin et al. (Wis.)

$416.

REPORT AND FINDINGS OR AWARD. Record of claimant on appeal from decision of committee of arbitration_to board held to be filed within time required by statute as existing December 4, 1914, where extensions of time had been granted. Sulzberger & Sons Co. v. Industrial Commission of Illinois et al. (Ill.) . . . Agreement for compensation between employee and employer approved by board has effect of award-award not reviewed or set aside, is conclusive on both paties except as provided in Sec. 45, allowing a modification on change of conditions. Pedlow v. Swartz Electric Co. (Ind.). Where question arises as to whether accident from which workman dies occurred in course of employment, findings of fact by compensation referee should be so explicit as to state full circumstances thereof. Gurski v. Susquehanna Coal Co. (Pa.)

If injured servant's failure to give notice to employer did not result in prejudice to employer and insurer, Commission before making award should make appropriate findings. In re Colon. Appeal of American Linoleum Mfg. Co. et al. (N. Y.)... Board, where appeal has not been taken within ten days, cannot allow appeal nunc pro tunc as of time prior thereto. Wise v. Borough of Cambridge Springs (Pa.)..

Under act held that if compensation is fixed by commission it is required to determine who is entitled to it before determining the amount. provisions as to distribution by probate court applying only to cases where employer makes voluntary payment to administrator. Smith-Lohr Coal Mining Co v. Industrial Commission et al. (Ill.). Agreement entered into under Act and approved by Board has force and effect of award-in absence of rule of board to contrary, insurance carrier not necessary party to compensation agreement-not binding on insurance carrier, either before or after its approval as against proper proceeding seasonably made, where such agreement is result of mistake or tinctured with fraud-burden is on insurer to show fraud-board' may determine fact of fraud and annual order-but where carrier has had reasonable opportunity to be heard on proposition of approval of agreement but has failed to avail itself thereof, its motion to vacate such order should not be entertained unless it clearly excuses failure-before vacating order carrier should be required to make at least an ex parte prima facie case on the merits. Aetna Life Ins. Co. v. Shively et al (Ind.)

Act does not require that board serve notice that award has been made and any means ordinarily employed in sending papers, including transmission by mail, express or messenger may be used. Jefferson Hotel Co. v. Young (Ind.)

Board has no jurisdiction to review award of full board although hearing was held before less than all the members-that the Act was amended so as to preclude review by full board, although hearing may have been before a less number did not deprive board of jurisdiction to grant rehearing where first hearing was had before amendment-where board on first hearing stated that applicant's injury resulted in total disability to work for certain definite period and then stated that disability "in this proceeding" did not reg lt from his injury, finding was contradictory, and latter finding being general must yield to former specific finding. Kingan & Co., Limited v Ossam (Ind.)

Findings of board held contrary to contention of employer appellant, that employee. a lineman, was guilty of willful misconduct. Indianapolis Light & Heat Co. v. Fitzwater. (Ind.) Whether or not statute providing aggrieved party may apply to Industrial Commission for review of award within five days after its date, repealed provision of Code requiring review to he filed within five days of decision. it superseded it as to fixing time to bring review and "date of award" means date of its filing with Commission. Herbig v. Walton Auto Co. et al. (Ia.)

Where on review by full Board of award made by one member, appellant made no showing as to what additional testimony sought to be introduced by him would be, but stated only a conclusion, Board did not abuse its discretion in refusing to permit him to introduce additional testimony. Consumers' Co. v. Ceislik (Ind.).. Referee in proceedings should make his finding of fact so comprehensive and explicit as to disclose full story of accident but legal precision cannot be insisted upon-act contemplates brevity in matters of practice but if referee fails to pass upon any material matter of fact in evidence which either party considers vital in event of appeal to court, those affected should apply to Compensation Board for assistance on hearing de novo. Flucker v. Carnegie Steel Co. (Pa.)

Where insurer failed within seven days after decision of committee of arbitration was filed, to file claim for review Industrial Board had no authority to grant insurer's motion for permission to file late its claim for review. Keohane's Case. In re McCarthy. In re Massachusetts Bonding

396

33

36

73

180

196

250

261

271

276

284

705

620

780

& Ins. Co. (Mass.)

743

« ΠροηγούμενηΣυνέχεια »