(3). Acceptance or rejection of statute.

Evidence supported findings of jury to effect that plaintiff had not received
actual notice of defendant's acceptance of provisions of act. Farmers'
Petroleum Co. et al. v. Shelton (Tex.)...

..138

(4). Injury arising out of and in course of employment.
Finding that injuries were accidental and arose out of employment, held
without facts or evidence to support it. Alpert v. J. C. & W. E. Powers
et al. (N. Y.)......
Ultimate finding that injury arose out of employment within meaning of the
act is sustained-employee was hit and injured by missile thrown by
fellow worker. State ex rel. H. S. Johnson Sash & Door Co. v. District
Court, Hennepin County. et al. (Minn.)......
Report of matter to commission of injury to servant and admission that
servant was injured, while proof of accident, is not proof that injuries
claimed, resulted from accident. A. Breslauer Co. v. Industrial Com-
mission of Wisconsin et al. (Wis.).

Testimony that lodging house keeper was in habit of employing some one
off and on to help out chambermaid, warranted conclusion that employ-
ment was in usual course of employer. Walker v. Industrial Accident
Commission (Cal.)

Where various theoretical conclusions may be drawn, each equally plausible,
some indicating that injury arose out of employment and others that
misconduct was producing cause, it may not be said that evidence is
sufficient to sustain cause of claimant upon whom burden of proof rests-
evidence insufficient to support conclusion of commission that decedent
was killed in course of employment, tending instead to show that it
was misconduct. John A. Roebling's Sons Co. et al. v. Industrial Ac-
cident Commission et al. (Cal.)...

100

95

189

29

38

230

Coal miner while loading car died from rupture of aorta which was in diseased
condition, evidence sustained finding injury occurred in course of employ-
ment. Indian Creek Coal & Mining Co. v. Calvert et al. (Ind.)...
Employee of cooperage company who temporarily went out of building and
was killed on employer's switch track, evidence held to show accident
did not arise out of employment. Piske v. Brooklyn Cooperage Co. (La.) 264
Evidence justified finding that cause of death was doubtful and could not be
determined, not requiring finding that death was result of personal in-
jury due to inhalation of poisonous fumes. Murphy's Case. In re Em-
polyers' Liability Assur Corp. (Mass.)..

Under Federal Act assumption of risk as defense is removed only in cases
where violation by common carrier of statute enacted for safety of em-
ployees contributed to injury. Vandalia R. Co. v. Kendall (Ind.)..
Not necessary that some witness should testify to seeing accident, if it is
shown that while employee is at work there has been an accident or
some circumstances tending to show fact. Peoria Cordage Co. v. Indus-
trial Board of Illinois et al. (Ill.)...

In proceeding for death due to heat prostration, evidence held sufficient to
justify inference drawn therefrom by commission that employee had
not been specially affected by severity of heat by reason of employment.
Campbell v. Clausen-Flanagan Brewery et al.-In re Brewers' Mut. In-
demnity Ins. Co. (N. Y.).....

270

478

451

676

779

Evidence supported finding that deceased servant at time of accident was in
course of employment. McMinn v. C. Kern Brewing Co. et al. (Mich.).. 645
Finding that injured employee, highway foreman, was crossing road at time
of accident to engage in conversation with friend, warranted by evidence.
Robinson v. State (Conn.)...
What deceased said as to cause of mark upon his neck was hearsay, which,
standing alone. was insufficient to sustain referee's findings for claimant.
McCauley v. Imperial Woolen Co. et al. (Pa.).....
Probable nature of accident followed by death may be established by cir-
cumstantial evidence. McCauley v. Imperial Woolen Co. et al. (Pa.).. 930

(5). Dependents.

930

Facts conceded or found by commissioner showed father assisted in support
of son, alleged not to be in best of health, did not justify conclusion of
commissioner-who erroneously ignored evidence that claimant was un-
duly pampered by father and possibly somewhat lacking in enterprise-
that claimant was partial dependent. Gherardi v. Connecticut Co. (Conn.) 212
Evidence sufficient to support verdict rendered by jury upon proof of claim
predicated upon dependency must be regarded as also sufficient to sup-
port claim for compensation out of workmen's compensation fund based
upon same ground. Poccardi, Royal Consul, v. Ott, Compensation Com'r
(W. Va.)

949

(6). Compensation.
Conduct of employer in permitting elevator to be maintained and operated
in condition in which it was at time of accident was not serious and
Award for permanent loss of foot erroneous under evidence, where leg
was merely factured. Mountain Ice Co. v. Court of Common Pleas in
and for Morris County et al. (N. J).
Evidence sustained finding that employee was entitled to nearly one-half of
total disability of both eyes and to sustain finding for permanent instead
of temporary injury to sight. International Motor Co. v. Purcell (N. J.) 528

532

willful misconduct, permitting of double compensation-"serious and will-
ful misconduct" defined Beckles' Case. Flint v. Employers' Liability
Assur. Corp. (Mass.)

278

58

Whether plaintiff was injured by mortar thrown by fellow servant in sport
and whether fellow servant habitually indulged in dangerous play, and,
if so, whether such habit was known to defendant, were questions for
jury. Stuart v. Kansas City (Kan.)...
Evidence presented jury question whether at time of accident employee was
leaving work in usual and ordinary way. Ewig v. Chicago, M. & St. P.
Ry. Co. (Wis.)
193
Evidence presented question whether engineer in failing to keep proper
lookout on one side of engine in yards was guilty of negligence render-
ing company liable. Ewig v. Chicago, M. & St. P. Ry. Co. (Wis.)...... 19%
Evidence warranted finding of contributory negligence of locomotive engineer
killed while crossing tracks of employer. Ewig v. Chicago, M. & St. P.
Ry. Co. (Wis.)......

193

Defense relied upon was that plaintiff's injuries were result of his negligence
in failing to procure proper medical attention, held there was no substan-
tial evidence for basis of this claim and instructions upon this issue
were not prejudicial to defendant. Dobish v. Cudahy Packing Co. (Kan). 63

Findings of court awarding compensation interpreted and found not to be
inconsistent with judgment rendered. Gilmore v. Monarch Cement Co.
(Kan.)

§ 411%2. NEW TRIAL.

Petition did not state facts sufficient to compel trial court to grant new trial.
Lombard v. Uhrich et al. (Kan ).....

§ 412.

APPEAL OR OTHER PROCEEDINGS FOR REVIEW.
Hearsay evidence admissible-declaration that crutch slipped and that work-
man fell injuring him second time, which second injury was direct out-
come of first and resulted in death, admissible. Shell Co. of California
v. Industrial Accident Commission et al. (Cal.)...

628

53

34

8413.

PROCEEDINGS BEFORE BOARDS OR COMMISSIONS.

§ 414.

IN GENERAL.

415. RECEPTION OF EVIDENCE.

Evidence must not be taken ex parte. Ruda v. Industrial Board of Illinois
et al. (Ill.) . . . .
Compensation Act permits liberal investigation by hearing and otherwise
and after all data have been gathered, without regard to technical
rules, proof must be examined and irrelevant testimony excluded, and
findings must rest on relevant and competent evidence. McCauley v.
Imperial Woolen Co. et al. (Pa.). . . . .

$416.

REPORT AND FINDINGS OR AWARD.
Court on appeal from original award had jurisdiction, since amendment did
not vitiate original. Foster-Latimer Lumber Co. v. Industrial Commis-
sion of Wisconsin et al. (Wis.).
Express finding that representation by insured was immaterial was not re-
quired where such issue was not presented by insurer and commission
found policy was in full force and effect at time of injury. Employers'
Liability Assur. Corp., Ltd., of London, Eng., v. Industrial Accident Com-
mission (Cal.)

Finding that employer was grossly negligent was not finding that he was
guilty of serious and willful misconduct, permitting recovery of double
compensation. Beckles' Case. Flint v. Employers' Liability Assur. Corp.
(Mass.)

220

930

199

25

278

Finding in proceeding under act need not affirmatively show lack of evidence
or inability to find, failure to find alone being equivalent to finding
against party on whom burden of proof rests. Raynes v. Staats-Raynes
Co. (Ind.)
Conceding that Commission would be acting without jurisdiction, as, for
instance in action for damages by libel, its acts in any compensation
proceeding, though beyond its jurisdiction are not so without jurisdiction
of the subject-matter to be subject to collateral attack. Thaxter v.
Finn, Sheriff. (Cal.).
Compensation Board, if not sustaining referee's decision, may not reverse
on question of fact, but must grant a hearing de novo, and substitute
its own findings and conclusions, and on appeal on alleged error of law,
must act solely on referee's record, and sustain, reverse. or modify his
final order-Appeal to Compensation Board-referee's finding of fact
without any evidence at all is an "error of law"-board must exercise
its discretion in determining nature of appeal-board must sustain
referee or grant a hearing de nova-testimony cannot be re-examined
for finding of new facts-facts justified conclusion that servant died as
result of injury by accident in course of employment-board could not
make separate findings of fact, so that provision of section 409 that its
findings of fact should be final, did not apply. McCauley v. Imperial
Woolen Co. et al. (Pa.)...

Findings of board held to sustain award to coal miner who lost sight of
eye through injury but gave no notice to employer, on ground that em-
ployer's agents had actual knowledge, and reasonable excuse for failure
to give notice existed. Vandalia Coal Co. v. Holtz (Ind.)..

Board having found facts showing actual knowledge of injury by employer's
agents, also reasonable excuse for failure to give statutory notice,
findings are binding on
Appellate Court, if there is any evidence to
sustain either. Vandalia Coal Co. v. Holtz (Ind.)...

485

431

930

880

880

(1). Nature and form of remedy.
Award from which error has not been prosecuted is to be certified by trial
court to commission and thereafter to be treated in all respects as if
originally rendered by such commission-continuing jurisdiction-30 day
period does not begin to run against claimant until he has received
actual notice or rejection of claim-where employer has elected to pay
compensation directly to employee, if denied participation in state fund,
injured employee may appeal to court of common pleas of county wherein
injury was inflicted. Roma v. Industrial Commission of Ohio (Ohio)... 122
"Summary Manner" means a short concise and immediate proceeding. Phil
Hollenbach Co. v. Hollenbach (Ky.)......
492

Where Commission certified to Appellate Division question regarding its
powers, asking advisory opinion thereon, Appellate Division was without
power to order anything to be done but could only answer question-
Legislature did not attempt to authorize merely advisory opinions, but
questions certified under act must be incidental to pending controversy.
In re Workmen's Compensation Fund. Self-Insurers' Ass'n et al. V.
State Industrial Commission (N. Y.).

542

Appeal from Compensation Board to common pleas is in nature of certiorari,
intended to prevent appeals to courts, except for errors of law, and to
hasten final determination of claims. McCauley v. Imperial Woolen Co.
et al. (Pa.)
..... 930

(34)

Whether claimant was engaged in horticultural work and therefore not sub-
ject to act when injured, was for commission. whose decision was beyond
review by certiorari. George v. Industrial Accident Commission et al.
(Cal.)

Where referee disallowed claim for compensation because employer and em-
ployee were engaged in interstate commerce and Compensation Act did
not apply, Compensation Board's affirmance thereof was final and appeal
therefrom to common pleas was properly dismissed. Messinger v. Lehigh
Valley R. Co. (Pa.)..

748

940

Where proof offered by claimant, in this case. widow of employee killed in
coal mine. in support of her claim as dependent for contribution out of
workmen's compensation fund, is clear an uncontradicted, an adverse
adjudication of her right thereto may be revised and claim allowed on
appeal. Poccardi, Royal Consul, v. Ott, Compensation Com'r (W. Va.). 9 )
Where board concludes that referee's adjudications indicated that there
was no evidence before him substantiating allegations of claim petition,
its order granting a hearing de nova is interlocutory and no appeal lies
therefrom. Mooney v. Lehigh Valley R. Co. (Pa.)...

(3%). Right or review.

Employer who contributes to insurance fund as self-insurer, by contributing
directly or by insuring with insurance company. has right of appeal from

942

award of commission which is alleged to have been made without juris-
diction. Industrial Commission of Utah v. Evans, District Judge (Utah). 848
Where employer's petition for certiorari to review award of Board alleges
that commission found without evidence that claimant was entitled to
compensation and that order is based on that finding. finding and order
were necessarily in excess of power of commission and subject to review.
Industrial Commission of Utah v. Evans, District Judge (Utah)........ 848
(3%). Proceedings for appeal or other form of review.
Employer's appeal from order of commission must be timely. Industrial Com-
mission of Utah v. Evans, District Judge (Utah).
Letter to Industrial Board from insurance carrier, though beginning "We
hereby file notice of intention to appeal," yet concluding "To be on the
safe side I am filing this notice of appeal," should liberally be regarded
as notice of appeal. Prendergast v. Berrian Bros. et al. (N. Y.)..
Right of appeal from decision of commission being statutory, party desiring
to avail himself of such privileges, must comply with statute. Stacks v.
Industrial Commission of Colorado et al. (Col.)...

848

826

756

(4.) Presentation and reservations of grounds of review.
That after rehearing commission informed claimant that second rehearing
could not be granted, would not give district court jurisdiction to review
action of commission on claimant's petition, where he had not petitioned
for rehearing. Stacks v. Industrial Commission of Colorado et al. (Col.) 756
Appellate Court, on certiorari, may examine opinion of the board
basis on which it acted. McCauley v. Imperial Woolen Co. et al. (Pa.). 930

(4%)

to see

Compensation referee is an officer of the compensation Board, with defined
powers, and his records belong to files of court, and on appeal, are
before it for review within limitations of the act-notes of testimony
are not properly part of record sent up on appeal from Compensation
Board to common pleas under Compensation Act, and if mistakenly
included in record, should not be considered. McCauley v. Imperial
Woolen Co. et al. (Pa.).....

930

(4%). Transfer of cause.
Award from which error has not been prosecuted is to be certified by trial
court to commission and thereafter to be treated in all respects as if
originally rendered by such commission-continuing jurisdiction-30 day
period does not begin to run against claimant until he has received
actual notice or rejection of claim-where employer has elected to pay
compensation directly to employee, if denied participation in state fund,
injured employee may appeal to court of common pleas of county wherein
injury was inflicted. Roma v. Industrial Commission of Ohio (Ohio).. 122
Petition for appeal must be filed within 20 days and the summons also must
be issued within such period-it may be waived. Phil Hollenbach Co. v.
Hollenbach (Ky.)

Evidence before board alone constitutes transcript of evidence on appeal.
Phil Hollenbach Co. v. Hollenbach (Ky.)..
Notwithstanding award would have been annulled on proper review, em-
ployer can have relief only where proceeding is instituted in proper time
and court, failing which, award is not open to attack. Thaxter v. Finn,
Sheriff (Cal.)

(5). Trial or review.

District court cannot make new findings of fact, but must accept those of
commission if supported by credible and substantial evidence. Industrial
Commission of Colorado et al. v. Johnson (Col.).

Where construction of uncertan or ambiguous contract is one of mixed law
and fact for determination of board, its conclusion in presence of some
evidence is binding on appeal. Mobley v. J. S. Rogers Co. (Ind.)..
Where plaintiff fails to serve and file brief within time required by rule 5,
appeal will be considered abandoned and upon motion will be dismissed.
Davis v. State Industrial Commission et al. (Okla.)..

492

492

431

43

47

130

The act including docks and wharves with enumerated hazardous employ-
ments and on findings that employer was carrying on general public
warehouse, dock and wharf business and that deceased was watchman
in warehouse and on stipulation that work was extrahazardous, it will be
inferred that dock, wharf and warehouse was single structure of plant,
or that if they were separate that were so operated as to make one
business. O'Brien v. Industrial Insurance Department (Wash.)........ 171
On holding that same is warehouse it will be presumed that fund is or
would be collected out of which claim of widow could be satisfied.
O'Brien v. Industrial Insurance Department (Wash.)..
Burden of proving that decision of commission as to whether injury was re-
ceived by servant within scope of employment, was incorrect rests upon
appellant-it was for jury to determine question of fact presented by ap-
peal. Jewel Tea Co. v. Weber (Md.).

Requested instruction was properly amended-refusal of court, sitting for
jury, to rule as matter of law, there was no evidence legally sufficient
to justify award was proper, evidence presenting questions of fact. Coast-
wise Shipbuilding Co. et al. v. Tolson (Md.)

171

87

... 91

In absence of contrary finding of fact it will be presumed on appeal that
lifting of bundles of paper weighing from 40 to 60 pounds by claimant
did not caues hernia-though commission found that claimant sustained
hernia while lifting and that injury was accidental, claim will be sent
back for rehearing, there being no finding that hernia was caused by
lifting paper or by strain. Alpert v. J. C. & W. E. Powers, et al. (N. Y.). 106
Where application to commission to have evidence stricken was never formally
acted upon it must be assumed to have been denied. Mesmer & Rice et
al. v. Industrial Accident Commission et al. (Cal.)..
Court on appeal can consider only such proof as was before the commissioner
at time he acted upon application. Poccardi, Royal Consul, V. Ott,
Compensation Com'r (W. Va.)..

743

949

Where evidence is conflicting and there is competent evidence to sustain
decision, legal conclusion of board, not based on any evidence will not be
sustained. David Bradley Mfg. Works v. Industrial Board of Illinois et
al. (IL)
While determining of facts from evidence is usually exclusive province of
Board, it is reviewable by courts-court must consider only evidence
tending to support award and inference harmonizing therewith-where
servant was drilling pieces of metal where a certain safety appliance
was sufficient and was ordered to drill one where such appliance was
inadequate and his failure to use a better one resulted in death, held
that it could not be said as matter of law that his conduct amounted
to willful refusal. Haskell & Barker Car Co. v. Kay (Ind.).....
That an accident arises out of employment within meaning of act is in
nature of a legal conclusion of the Industrial Board-appellant must
bring to court a record which affirmatively shows reversible error and
not merely finding containing only evidentiary facts susceptible of two in-
ferences. Raynes v. Staats-Raynes Co. (Ind.).....
Where master's negligence is shown, whether intervening negligence of person
injured is proximate cause of injury, is mixed question of law and fact
and one for jury. Dickinson et al. v. Granbery (Okia)..........
Whether claimant had established causal connection between accident to
deceased servant in course of employment and his death, more than
three months later, was issue of fact to be determined by board, whose
decision on issue of fact is not open to revision by Supreme Judicial
Court-evidence held insufficient to justify Supreme Judicial Court in
holding as matter of law that finding of board, that claimant had failed
to prove deceased servant's death had any causal connection with pre-
vious injury in employment, was unwarranted. Knight's Case-In
Travelers' Ins. Co. (Mass.).

re

Burden of proving that decision of commission as to whether injury was re-
ceived by servant within scope of employment, was incorrect rests upon
appellant-it was for jury to determine question of fact presented by ap-
peal. Jewel Tea Co. v. Weber (Md.)......
Requested instruction was properly amended-refusal of court sitting for
jury, to rule as matter of law, there was no evidence legally sufficient
to justify award was proper, evidence presenting questions of fact. Coast-
wise Shipbuilding Co. et al. v. Tolson (Md.).
Commission's conclusions on question of fact are conclusive on Supreme
Court, except when without evidence to support them. Walker v. Indus-
trial Accident Commission (Cal.)...
Evidence sustained award on point whether death was caused by operation
made necessary by second injury resulting from first, received in employ-
ment. Shell Co. of California v. Industrial Accident Commission et al.
(Cal.)

Where there was evidence that injury to employee resulted in pleurisy and
pneumonia causing death, finding that injury was proximate cause will
not be set aside on appeal. A. Breslauer Co. v. Industrial Commission
of Wisconsin et al. (Wis.)..

226

466

485

83%

901

81

91.

29

34

189

Finding that injury did not arise out of employment was finding on question
of fact and could not be set aside if there was any evidence to support
it Murphy's Case. In re Employers' Liability Assur. Corp. (Mass.).... 270
While determining of facts from evidence is usually exclusive province of
Board, it is reviewable by courts-court must consider only evidence
tending to support award and inference harmonizing therewith-where
servant was drilling pieces of metal where a certain safety appliance
was sufficient and was ordered to drill one where such appliance was
inadequate and his failure to use a better one resulted in death, held
that it could not be said as matter of law that his conduct amounted
to willful refusal. Haskell & Barker Car Co. v. Kay (Ind.)....
That an accident arises out of employment within meaning of act is in
nature of a legal conclusion of the Industrial Board-appellant must
bring to court a record which affirmatively shows reversible error and
not merely finding containing only evidentiary facts susceptible of two in-
ferences. Raynes v. Staats-Raynes Co. (Ind.).....

466

485

Only question before Supreme Judicial Court is whether there is any evi-
dence which warranted finding and court is without authority to review
board's finding of fact. Fitzgibbons' Case. (Mass.)..

521