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Under provision that child under 18 shall be conclusively presumed wholly
dependent on parent with whom living, boy, whose care, custody, main.
tenance and education were awarded to mother by divorce decree, re-
quiring father to pay $10.00 per month for such purposes, was not whol-
ly dependent on father. Ninneman v. Indust. Comm. (Wis.)
If widow of deceased employee was not living with him when he died, so as
to be wholly dependent on him, question of dependency was to be de-
termined by Board, free from presumption and in accordance with facts,
existing at time of injury. Breakey's Case. (Mass.)

925

865

In enacting Act, legislature could provide for double dependency or deny
compensation to any one for death of injured employee.
Under pro-
vision that child under 16, is conclusively presumed wholly dependent
and that stepparents shall be regarded as parents, effect is to substitute
stepparent for actual parent so that child whose natural father
killed but who, at time, was living with stepparent is not repugnant to
statute. Hoover v. Central Iowa Fuel Co. (Iowa.)
840

was

Where husband and wife had separated three years prior to death and had
not lived together, and she was not relying upon or receiving contribu-
tions from him, she was not "dependent". Collwell v. Bedford Stone
& Construction Co. (Ind.)

823

189. SUBROGATION TO RIGHTS OF INJURED EMPLOYEE.
Policy held to confer right of subrogation on insurer only in event it has
paid whole amount due, notwithstanding act. Maryland Cas. Co. v.
Cincinnati, C., C. & St L. Ry. Co. (Ind.).
68
Under act authorizing injured employee to either sue a third party injur-
ing him, or seek compensation but not to do both, and providing that
insurer paying compensation should be subrogated to employee's rights
and pay any sum recovered in excess of compensation to injured em-
ployee, employee after receiving compensation may sue third party
upon insurer's failure or refusal to sue and recover full damages minus
compensation previously received. Wm. Cameron & Co., Inc. V.
Gamble (Tex.)...

312

228

649

In action by insurer to recover indemnity paid by it under policy issued
telephone company on account of death of latter's employee, brought
against power company whose negligence caused death, insurer's rights
to recover were same as rights of deceased. Fidelity & Casualty Co.
v. Cedar Valley Electric Co. (Iowa.)...
Subrogation of employer to rights of employee injured by third party, to
extent of compensation paid, does not involve splitting of causes of ac-
tion-master who had paid compensation for injury occasioned by neg-
ligence of third person is not subrogated to all rights of employee to
recover damages under act, but only to extent of compensation paid is
less than damages. Black v. Chicago Great Western R. Co. (Iowa)...... 218
Where master was liable because it had actual knowledge of accident it
may recover from third person whose negligence caused death for which
master paid compensation-in such action measure of damages is not fixed
in act, but employer must pay to dependents difference, if any, over
and above amount paid-making a claim by widow alone is sufficient to
trans.er to employer right of recovery against third person whose acts
caused death-where employer paid widow and there was no evidence
that insurance carrier had paid compensation or served notice on widow
that it accepted responsibility, employer may recover from third per-
son whose acts caused death, regardless of claim that right of action
was in insurance carrier. Western States Gas & Electric Co. v. Bayside
Lumber Co. (Cal.)
Insurance carrier and injured employee may jointly sue partly negligently
causing injury without formal award of compensation. Moreno et al. v. Los
Los Angeles Transfer Co. (Cal.)
Act of plaintiff in collecting compensation from son's employer worked an
assignment to employer or insurance carrier of any cause of action
against defendant Electric Company for son's death, and employer or
carrier could maintain such action in own names such plaintiff still
retained interest in any recovery that might be had against defendant
and was proper party plaintiff, but could not prosecute action with-
out joining as plaintiffs or defendants the employer and insurance carrier.
Stackpole v. Pacific Gas & Elec. Co. (Cal.)
Where employee's injury was due to negligence of third party, employer has
interest in employee's cause of action against third party, in the nature
of lien which he can enforce in own name and which cannot be impaired
by settlement by employee not concurred in by employer; third party being
chargeable with notice that settlement could not affect employer's
rights. Papineau v. Indust. Acc. Comm. (Cal.)
..... 492
Right of surety company to be subrogated to rights of injured employee
after its payment of compensation is given for surety's benefit, and its
suit against negligent third party is for its benefit to extent of compen-
sation paid by it and for benefit of injured emploee for any excess, so
that intervention of surety company which had so paid should not be
dismissed. Lancaster et al. v. Hunter. (Tex.)

State fund having paid compensation to injured servant is entitled to be
subrogated pro tanto to right of servant in judgment against third per-
son for damages. Mayhugh v. Somerset Telephone Co. (Pa.)

488

481

612

891

390.

§ 891.

$ 3912.

892.

393.

PAYMENT OF COMPENSATION.

PERSONS LIABLE.

PENALTY FOR DEFAULT OR DELAY.

-AUDIT OF CLAIMS INCURRED OR PAID BY BOARDS OR COM-
MISSIONS.

TERMINATION OF PAYMENTS.

152

Minor sister of deceased is not "child" within act, and her, becoming of age after allowance was made, does not nullify right to award in full. Hasselman v. Travelers' Ins. Co. (Colo.).. Under act providing that insurer will pay insured employee weekly compensation for not more than 100 weeks from injury, and further providing that compensation shall begin to accrue on the 8th day after the injury or Incapacity commenced. If total and permanent incapacity continues 400 weeks after date of injury, servant is entitled to compensation for 400 not 401 weeks. Texas Employers' Ins. Ass'n v. Downing (Tex.)......... 582 13934. PRIORITIES. 393. MEDICAL ATTENDANCE AND SERVICES. Physician furnishing medical aid to insured employee may recover direct from insurer-where services rendered were surgical in nature and treatment given after expiration of two-week period was only incidental, physician may recover although services covered period in excess of two weeks injured employee, may at time of injury or immediately thereafter, call in any available physician to render first aid treatment necessary, at expense of association. Home Life & Accident Co. v. Cobb (Техав)

916

(C) PROCEEDINGS.

$894. NATURE AND FORM OF REMEDY. Remedy of assenting employee against assenting employer, by petition to Commission under act, is exclusive-remedy of employee who had elected to claim common-law rights under act is by common-law action simply. Nadeau v. Caribou Water, Light & Power Co. (Me.) Commission in enforcing payment of premium due from school district, included within term "employer," is not limited to mandamus against district officers, but may proceed by action. School Dist. No. 1, City & County of Denver v. Indust. Com. (Colo.)..

Remedy extended by act is exclusive of all other statutory or common-law remedies, except by specific provision. Helme V. Western Milling Co. (Cal.)..

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If work in which railroad employee was engaged was part of interstate commerce, state act is inapplicable.-Generally, when applicability of Federal Act is uncertan, character of employment in relation to commerce may be adequately tested by inquiring whether injured employee was engaged in work so closely connected with interstate transportation as practicaly to be part of it.-Where lineman, when he had sustained fatal shock was working on wires so that if power had been short-circuited through his body, it would have stopped cars, work was essentially part of interstate transportation and Federal Act, not State Act, governed case. Southern Pac o. v. Indust. Acc. Comm. (Cal.).. Purpose of U. S. Constitutional provision was to designate existing law of sea as that by which rights of litigation in maritime cases were to be determined.-Validity of cited statute conferring exclusive Admiralty jurisdiction on Federal Courts, but saving right of common-law remedy where competent does not establish validity of amendment extending saving clause to claimants to rights as well as remedies under State Act.--Decision re interstate commerce in liquors to state prohibition does not establish power to subject Admiralty rights to State Law.Amendment of U. S. code saving rights and remedies for maritime injuries under State Act held unconstitutional. Sudden & Christenson v. Ind. Acc. Comm. (Cal.)..... Occupation of steamship company's stevedore was maritime in nature and his widow's claim for compensation could not have been made under State Act.-Federal statute saving to such claimants, rights and remedies under State Act. held not retroactive. Hogan v. United Fruit Co. (Pa.) Member of railroad wrecking crew killed while assisting in replacing derailed engine, not permanently assigned to particular branch of traffic, was not in interstate commerce. Reynolds v. Phila. & R. Ry. Co. (Pa.)..

If railroad employee lost life while in interstate commerce, case is within Federa! Act and there can be no recovery under State Act-Flagging

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897

of interstate train is interstate commerce-Railroad's watchman on pub-
lic road crossed by tracks used for both intra- and inter-state commerce
was not engaged in interstate commerce when killed flagging an intra-
state train. Di Donato v. Philadelphia & R. Ry. Co. (Pa.)
Remedy under State Compensation Law is not exclusive of that in Admi-
ralty Courts, but suitor has his election-phrase, common-law remedies
to suitors, in code, means that common-law remedy is accorded as well
as remedy in Admiralty, that remedies are concurrent and either may
be adopted. Rohde v. Grant Smith-Porter Ship Co. (Ore)
762
Assignment under Act of claim against third person for death from injury
of workman on payment of compensation by insurer held not to confer
on assigning right of action under Maritime Law. Travelers Ins. Co.
v. Prince Line. (N. Y.)

I 190. JURISDICTION OF COURTS.

761

327

Order of district court authorizing guardian of injured employee, rendered
insane by accident to make lump sum settlement with employer and
execute release, held not even prima facie evidence of reasonableness
of settlement. Reteuna v. Indust. Com. (Utah).
Work of longshoreman having been maritime in nature, employment was
maritime contract, and rights and liabilities of himself and employers
were within admiralty jurisdiction of U. S.. so that act of Louisiana
had no application-Federal Statute saving rights under state act
should not be given retroactive effect. Peters v. Veasey (U. S.)
278
Venue of claim under act is in county wherein occupation is carried on in which
workman was injured and claim is to be filed in district court of such
county. Albuquerque & Cerrillos Coal Co. v. Lermuseaux. (N. M.)
Under cited statute, requirement that suit to set aside award be brought
where injury occurred, is not in that jurisdiction but relates only to
venue, and guit brought in another county should not be dismissed but
upon defendant's application, transferred to county where injury occur.
red. United States Fidelity & Guaranty Co. of Baltimore v. Lowry,
(Tex)

↑ 197. BOARDS AND COMMISSIONS.
Under act authorizing subrogation to employer's rights against insurer in
case of employer's insolvency, insurer can be substituted to pay em-
ployee, enforceable by commission.- Rider covering liability under act
waives provision limiting insurer's liability to reimbursement and pre-
cludes objection to commission's jurisdiction to enforce payment, pro-
viding insurer be substituted for insolvent assured. Ill. Indemn. Ex.
v. Indust. Comm. (Ill.) . . . . .
Provision that fees of attorneys and physicians shall be subject to provision
of Board, is not intended to enlarge authority of Board with reference
to provision of physician's fees beyond that provision for emergencies
caused by employer's failure to provide medical care. National Car
Coupler Co. v. Sullivan. (Ind.)

397%. REPORTS OF ACCIDENT.

563

907

42

833

I 198. NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPENSA-
TION.

Not essential under act that claim be made to employer previous to presenta-
tion to commission. providing done within six months. Miss. River
Power Co. v. Indust. Comm. (Ill.) . . . .
Mere fact that employer permitted injured employee to return to old position
at full pay and to continue thus for several months would not give
rise to claim that portion of pay thus received was compensation for
previous injury to extend time within which application for compensa-
tion should be filed-where injured servant went to employer's physician
several times and was sent by physician to employer's claim agent for
examination, no treatment or medicine being received, no such medical
service was rendered as would extend time for filing application-in-
jured servant cannot excuse failure to make application on ground,
he was lulled into sense of security by representations made on behalf
of employer by car dispatchers who told him claim had been sent in,
where there was no showing that such persons had authority to make
statement. Hunt v. Indust. Acc. Comm. (Cal.)......

Written notice of claim against employer, made within six months after
date on which insurance carrier's check to claimant was received and
cashed, held to have been in time, although accompanying receipt,
signed by claimant, was dated more than six months prior to notice.
Stephens Engineering Co. v. Indust. Comm. (Ill.) . .

Voluntary lump sum settlement agreement, executed after expiration of time
prescribed for filing claim, though stating jurisdiction had been lost, held
to confer jurisdiction on commisson to confirm settlement as award and
to review same at employee's request on ground of increased disability.
Tribune Co. v. Industrial Commission. (I11.)
Claim for compensation, which Act requires to be made within six months, is
jurisdictional. Under requirements for a claim to be made within six
months after accident, or after payments made, employee suffering injury
to eye who claimed and received medical services and failed to make claim

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for other compensation until two years later when blindness developed, held not entitled to indemnity for loss of eye sight. Central Locomotive & Car Works v. Industrial Commission. (III.)

Held that failure to give notice of injury within time required by Act, having been properly excused by commission was not bar to respondents' claim. Unity Drilling Co. v. Bentley. (N. Y.) Insurance carrier's payments to hospital for surgical, medical and hospital services, under act are not "payments of compensation" within provision that limitation for filng claim shall not take effect until one year from last payment. Claimant cannot recover on petition not filed until more than one year after accident although within year payment has been made to hospital for services, etc. Paolis v. Tower Hill Connellsville Coke Co. (Pa.) Where no claim for compensation for injury between ankle and knee with lacterated periostem was made by employee within time required by act and employee who fell and injured thigh more than three years thereafter, died of cellulitis of thigh, death claim cannot be based upon first injury. Wright v. Brooklyn Union Gas Co. (N. Y.). Master must be deemed to have actual knowledge of accident so as to be liable without claim where foreman visited scene and saw body before it had been removed. Western States Gas & Electric Co. v. Bayside Lumber Co. (Cal.) Employers, one of whom saw the injured employee a few minutes after accident, having known practically from time of accident extent and circumstances of injury, absence of statutory notification will not prevent recovery. Smith v. White (La.)

367

462

466

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649

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Under provision that if association fails to furnish medical aid after notice of injury, injured employee may provide medical aid at cost and expense of association and insurer is liable for medical aid rendered by physician procured by insured employee where procured by direction of employer or where employer had notified insurer and it had failed to furnish such medical aid. Home Life & Accident Co. v. Cobb. (Tex.) 916 Knowledge of forelady of department in which injured employee worked, that he was hurt while engaged in employer's work, is notice to employer. Hydrox Chemical Co. v. Indust. Comm. (Ill.)

§ 3982. ARBITRATION.

Under evidence, conduct of employer held equivalent to refusal to consent to arbitration, autorizing workman to resort to action to recover. Stefan v. Red Star Mill & Elevator Co. (Kan.).

If employer refuse to consent, in writing, to arbitration workman is not obliged to resort to action to enforce payment of compensation, remedy by action being permissive and cumulative to remedy by arbitration-if workman has made fair effort to secure consent of employer to arbitration, expressed in writing and writing is not executed, employer may be regarded as having refused to consent-remedy by arbitration provided by act is distinct from that provided by general arbitration statute, is complete in itself, and is to be liberally interpreted and flexibly applied to accomplish its peculiar purpose-application to review, attacking merits of award, constitutes general appearance and waives objection on ground of failure to give required notice. Roper v. Hammer (Kan.).. $899. MEDICAL EXAMINATION OF CLAIMANT. Employee, by failing to give notice provided by statute, waives right to claim damages except under certain articles and thus waives right to assert common-law liability and consents to terms of act, and may be compelled to submit to physical examination in action to set aside award and for compensation in lump sum. Texas Employers' Ins. Ass'n. v. Downing. (Tex.) Act is sole authority by which court may order physical examination of claimant without his consent-statute gives master's insurer privilege of having physical examination of claimant made by physician of own selection and, in case of refusal, insurer should apply to board or court having jurisdiction for order for examination-general provisions of act relative to compelling submission to examination are not limited by specific provisions requiring exercise in particular cases, but make exercise in those particular cases mandatory instead of discretionary-facts developed on trial of motion for order to submit to physical examination as well as merits of case held to show true extent and effect of injuries was in doubt after introduction of all available testimony, and that X-ray examination sought would probably ascertain truth and clear up doubt so that motion should have been granted, where there was no conflict in evidence to the effect that X-ray examination would be helpful in clearing up controversy as to spinal injury testimony of physician on subsequent trial would not justify court's over-ruling such motion as matter of discretion. Where claimant had been examined by order of board but had made no claim before filing suit for injuries to sight and hearing and it subsequently became known that physician would testify he had curvature of spine, such facts afforded reasonable grounds for defendant's request to court for physicial examination where court refused to order submission to physical examination it was not necessary that motion be made that plaintiff be refused compensation until he submitted since he could not be allowed compensation while refusal continued. Texas Employers' Ins. Ass'n v. Downing (Tex.)..

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$400. PARTIES.

Under act, it is not necessary that executor of deceased file petition with
commission, but it may be filed by those entitled to compensation.
Miss. River Power Co. v. Indust. Comm. (Ill.)

In action by servant under act to recover damages from third person for
injuries, where compensation has been paid by employer, he should be
brought into case in order that he may be indemnified in case damages
are recovered. Black v. Chicago Great Western R. Co. (Iowa)..
Where insurer of president of company filed report with Board of injury
to employee of company and subsequently raised no question that it
was insurer of president and not of company, it waived possible ob-
jections as to parties, conceded dependent's claim that it was jointly
liable with company, employer. Diebel v. Spitzley & Widenman
Const. Co. (Mich.)....
Under provision subrogating employer to right of action against
causing injury but not providing in whose name action shall be brought,
employee may sue for benefit of insurer. Donahue v. Thorndike & Hix
Inc. (Me.)

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Injured servant may bring ordinary suit or in alternative under act and de-
fendant cannot complain of being allowed 10 days to answer instead
of 7. Norwood v. Lake Bisteneau Oil Co. (La.)
Answer pleading Illinois act as defence to action for injuries to smelting em-
ployee in Missouri need not allege employee was not engaged in farming
or exceptions in act. Mitchell v. St. Louis Smelt'g & Ref. Co. (Mo.)....
Declaration in action at common law for injury to servant must, to state
cause, show what is essential under act to right to maintain such action,
that either he or employer was not governed by act-where claim is
that employment is casual and that employee, therefore, is not under
act, declaration in action at common law for injury must affirmatively
allege facts bringing him within exception. Bishop v. Chicago Rys.
Co.
To avail himself of exemption from suits created by act, assenting employer
must plead and prove it-in any case, regardless of number of workmen
employed by one not assenting to act, employee injured by negligence
of nonassenting employer may bring and maintain common-law action,
alleging due care on his own part and need not allege employer to be non-
assenting-where servant brings common-law action against master em-
ploying more than five workmen, he may omit allegations of due care on
his part, but must then show that defendant belongs to class of "large
employers"-in common-law action under act, against nonassenting em-
ployer of more than five, servant, plaintiff, must where he does not
allege due care, allege and prove he is employee of defendant in specified
occupation, and that defendant employs more than five workmen regular-
ly in same business in which plaintiff is employed-plaintiff, in action
at common-law under act, must allege and prove injury was in whole
or in part caused by negligence of employer or of some person for
whose care employer was responsible-in common-law action by servant
under act, it is not inconsistent for plaintiff to join in separate counts
in his declaration that he was himself in exercise of due care and that
defendant belonged to class of employers against whom plaintiff's care
was not material. Nadeau v. Caribou Water, Light & Power Co. (Me.) 238
In action for injuries by failure to enclose gears, plaintiff must allege and
prove such failure was "gross negligence" or "willful misconduct," that
failure was personal on part of elective officer of defendant and indicated
willful disregard of employees' safety. Helme v. Great Western Mill-
ing Co. (Cal.).

143

Prayer, in action by widow for wrongful death of husband, that, should court
hold that case is governed by Act, then relief should be given according
to Act, was not sufficient to justify judgment under Act. Colorado V.
Johnson Iron Works, La.)
392

Under statute saving, to admiralty claimants, rights to workmen's compen-
sation, exception of no cause of action to libel for personal injuries will
not be sustained where libel fails to show that award had been re-
ceived; but if award has been received, that fact may be set up in
defense, for admiralty courts will not permit two recoveries for same
tort. Hogan et ux., for Use of Coffey, v. Buja (U. S).................. 647
Where complaint for personal injuries shows that plaintiff's employment was
in one of classes covered by act, failure of defendant to comply with such
act must be pleaded in order to give cause of action, and where complaint
does not show on its face that such act applies there is no presumption
to that effect. Baggs v. Standard Oil Co. of New York (N. Y.)......................... 749
Answer which board accepts is not insufficient because not signed and sworn to
by defendants, and need not be disregarded by board and petition taken-
answer accepted by referee and board as answer of defendants need not
set forth authority of person who signed it. O'Brien v. Tuch et al. (Pa.) 745
Exception of no cause of action, because plaintiff did not allege accident was
wholly accidental not having filed in limine and followed by proper
objection to evidence, but first filed on appeal, is unavailing if case was
made out by evidence. Smith v. White et al. (La.)

531

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