Court cannot Inquire into weight of conflicting evidence to determine where
preponderance lies, though it may inquire whether there is any com-
petent evidence sufficient to sustain award. Peoria Cordage Co. v.
Industrial Board of Illinois et al. (III.).

451

548

492

645

Decision of Commission is final as to all questions of fact. Board of Com'rs
of Cleveland County v. Barr et al. (Okla.).
Court on appeal will not order reversal unless finding of fact by Board was
clearly, flagrantly and palpably against weight of evidence. Phil Hollen-
bach Co. v. Hollenbach (Ky.)..
Finding of Board on application of minor employee awarded weekly com-
pensation for payment of lump sum, made upon evidence which might
have supported somewhat larger award, but whose weight and credibility
was wholly for consideration of Board, cannot be disturbed, though no
specific award was made for a period of 10 weeks a matter doubtless
taken into account in making lump sum order. In re Moran (Mass.)... 516
Finding of board on disputed question of fact will ordinarily be affirmed.
McMinn v. C. Kern Brewing Co. et al. (Mich.)..
Where facts are undisputed the inference drawn therefrom will not be re-
viewed-whether employee died from heat prostration by reason of em-
ployment is question of fact for commission. Campbell v. Clausen-
Flanagan Brewery et al.-In re Brewers' Mut. Indemnity Ins. Co. (N. Y.). 676
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 (Okla )..
Under federal Employers' Liability Act servant assumes all ordinary risk of
employment which are known to him. Risks not naturally incident to
occupation, but which arise from negligence of master are not assumed
by servant until he becomes aware of such negligence. Whether risk is
ordinary risk known to servant, or with knowledge of which he is charge-
able is question for jury. Dickinson et al. v. Granbery (Okla.).
Under federal Employers' Liability Act, whether on day of accident gang of
workmen for which deceased was timekeeper was repairing track used
in interstate commerce was for jury. Crecelius v. Chicago, M. & St. P.
Ry. Co. (Mo)....

838

838

809

884

Courts may not interfere with finding of facts made by commission where
they are supported by evidence, even though it may be thought there
is error. Pace V. Appanoose County (Iowa)..
Section 409 making board's findings of fact final in all cases, includes all
instances where board either adopts referee's findings or makes its own
findings and courts can grant no relief from its erroneous findings.
Messinger v. Lehigh Valley R. Co. (Pa.)....
Where referee's conclusions comprehend mixed findings of fact and
law,
board is justified in treating appeal to it as involving question of fact
and granting a hearing de novo. Mooney v. Lehigh Valley R. Co. (Pa.). 942
Finding of board on issue of fact is made conclusive when supported by
competent testimony. Curtis v. Slater Const. Co. (Mich.)...
909

Defense relied upon was that plaintiff's injuries were result of his negligence
in falling 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.).
Where board found that elevator was in defective condition substantial rights
of claimant for compensation were not affected by exclusion of evidence
tending to show defective condition at and before accident. Beckles'
Case. Flint v. Employers' Liability Assur. Corp. (Mass.).
Irregularities or errors in mere matters of procedure do not affect jurisdic-
tion of commission to make awards and are not grounds upon which re-
viewing court may vacate award-court will not set aside on certiorari
because of admission of incompetent testimony, there being enough
competent evidence to sustain award. Maryland Casualty Co. v. In-
dustrial Accident Commission et al. (Cal.) . . . . .
Award cannot be set aside for error of procedure in admitting incompetent
evidence which was merely cumulative, where there was other evidence
ample to support finding. Mesmer & Rice et al. v. Industrial Accident
Commission et al. (Cal.)......

940

63

278

616

743

(9). Determination and disposition 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
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 cause 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

It is within the power of district court in action to modify award to deter-
mine as matter of law that award was not in accord with findings and
to make award supported by findings. Industrial Commission of Colo-
rado et al. v. Johnson (Col.)...
Where judgment on appeal directs commission to fix amount of lump sum
award to servant for permanent partial disability it may take into con-
sideration competent medical advice as to effect of operation upon injury,
but cannot suspend compensation on ground that injury was hernia, as to
which by a rule of commission, claimant is required to first undergo
operation. Kline v. Industrial Ins. Commission (Wash.)
Where it does not appear that board passed on question of cause of injury,
whether employment, or employee's own physical or mental condition,
case must be recommitted to board to find cause of fall, or, if unknown
80 state. Hallett's Case (Mass.).....

§ 418.

43

167

281

— REVIEW OF JUDGMENT OF COURT ENTERED ON AWARD OF
BOARD OR COMMISSION.

(1). Nature and form of remedy.
(2). Decisions reviewable.

The act expressly provides there shall be no appeal from decree of superior
court, based on memorandum of agreement approved by board, and on
such an attempted appeal the merits of decree cannot be examined.
Dempsey's Case London Guarantee & Accident Co., Limited, v. Dempsey
(Mass.)

(3). Presentation and reservation of grounds of review.
(3%). Transfer of costs.

Whether single Justice of Supreme Judicial Court, pursuant to St. 1915,
c. 132, should enter an order for suspension pending appeal of decree
of superior court ordering entry of decree for dependent under the act,
and issuance of execution thereon rested in discretion of such justice.
Dempsey's Case-London Guarantee & Accident Co., Limited, v. Dempsey
(Mass.)
Superior court had jurisdiction of motion by insurer to dismiss employee's
appeal for want of prosecution or because not entered "forthwith" in
Supreme Judicial Court. In re Moran (Mass.)..

(4). Record.

...

640

640

516

Facts on which claim for compensation is based, if agreed upon on appeal to
common pleas, should be brought before Supreme Court upon record, on
subsequent appeal to it. Lane v. Horn & Hardart Baking Co. (Pa.).. 927

(5). Review.

Admission of hearsay evidence, if error, was harmless, where court expressly
stated that such evidence was excluded in his determination of the matter
and there is sufficient competent evidence to support award. A. Bres-
lauer Co. v. Industrial Commission of Wisconsin et al. (Wis.).
Where circuit court has reversed decision of board awarding compensation,
servant must produce evidence that board was justified in making award
and that circuit court was wrong in reversing it. David Bradley Mfg.
Works v. Industrial Board of Illinois et al. (Ill.).
Where the alias writ of certiorari to review award recited that application
was made by praecipe on August 8th for writ to review decision of
Board on July 26th, it would be presumed that alias writ correctly stated
facts that original praecipe was filed within statutory period, but was not
served according to law, which necessitated issuance of alias writ, so
that employer did not lose right to review. Fruit v. Industrial Board
et al. (Ill.)
Right of review by Supreme and Superior Courts in compensation claim is on
certiorari alone, and they may examine everything properly contained in
records sent to common pleas, including findings and reasons of court
below. McCauley v. Imperial Woolen Co. et al. (Pa.)..

189

226

448

930

In proceeding by common laborer for personal injury when delivery wagon
struck boom of concrete breaker and moved it toward him, finding of
Board, made final arbiters of questions of fact, that he was sitting on
curb during lull in work, but on duty, was sufficient to support award
though against weight of evidence. Malone v. Detroit United Ry. (Mich). 293
In accordance with act, finding of Justice of Superior Court, that heat
prostration was cause of employee's death is conclusive on appeal, in
absence of fraud, there being evidence upon which he might find. Walsh
v. River Spinning Co. (R. I.)....

(7)

In absence of showing whether workman overcome by sunstroke was com-
pelled to remain in pit must be recommitted to board on question whether
he was at liberty to stop work in time to protect himself. McCarthy's
Case. In re Employers' Liability Assurance Corp. (Mass.).

689

283

419. PROCEEDINGS TO INCREASE, DIMINISH, OR TERMINATE COM-
PENSATION.

Widow awarded compensation for death of husband from injuries arising
out of employment not barred from receiving further payments as de-
pendent upon her remarriage, though remarriage renders her no longer
dependent for support upon payments. Bott's Case. In re Employers'
Liability Assur. Corp., Ltd. (Mass.)...

420. COSTS, FEES, AND EXPENSES.

273

Right of litigant to recover attorney's fees from opposing party is statutory
right and though code relating to appeals from orders of commission
allows recovery of attorney's fee, yet, in absence of any statute authority,
neither court can allow such fees upon appeal from superior court to
Supreme Court. O'Brien v. Industrial Insurance Department (Wash.).. 171

Ex. G., M.
1/6/19

(31)

WILLIAM OTIS BADGER, Jr., Editor
R. M. CHANDOR, Manager

Issued Monthly

Every Current Workmen's Compensation Case of
Every Court in the Land

Annual Subscription $15.00 in Advance
Single Copies $1.50

Entered as second class matter April 10, 1918, at the post office at New York, New York, under the Act of March 3, 1879.

Accidental Means

By

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General Attorney Continental Casualty Co.

A clear and comprehensive digest of every American decision interpreting the insuring clause "Accidental Means" and "External, Violent and Accidental Means".

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