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.).. 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.).. 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 If inference favorable to applicant can be arrived at by Board only by conjec- Employer had knowledge within Section 20 that accident had been suffered, 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 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, Unimpeached report of master to Board stating manner of accident and in- (5). Dependents. Evidence examined and found insufficient to sustain finding of plaintiff's par- Under evidence mother and youngest brother of deceased were not dependent 337 331 331 396 451 46 174 735 Evidence held to show that injured employee verbally claimed compensation Special findings that plaintiff's disability is "about 50 per cent" and that he § 412. APPEAL OR OTHER PROCEEDING FOR REVIEW. In suit by employers to recover compensation paid for employee's death, IN GENERAL. 8 414. - 600 415. RECEPTION OF EVIDENCE. Statements of adjuster 'who appeared before Commissioner as representative 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 |