One alleging injury while working as longshoreman places himself within Act having been injured in hazardous employment and his remedy is exclusively under Act. Unless he can show employer has failed to secure such compensation to plaintiff and dependents as provided by statute where complaint of such longshoreman did not allege that defendant employer had failed to secure such payment, employer's motion for judgment on pleadinge will be granted with leave to serve amended complaint. Campoccia v. Parama R. Co. (N. Y.).......... Under provision subrogating employer to right of action against person causing injury, in such action it is not necessary to allege or show payment by insurer. Donahue v. Thorndike & Hix, Inc. (Me.)

I 402. $403.

EVIDENCE.

PRESUMPTIONS AND BURDEN OF PROOF. Burden of proof is on claimant to prove employment and injury, but on employer to prove that employment was merely casual. Consumers Mut. Oil Producing Co. v. Indust. Comm. (Ill.). Burden is on appellant to prove loss of eyesight was caused by the accident. Spring Valley Coal Co. v. Indust. Comm. (Ill.).... Claimant has burden of proving dependency under act,-evidence deceased sent sum to father three years before accident and another one year before, raises no presumption payment was for his support. Peabody Coal Co. v. Indust. Comm. (Ill.)........

Burden was on employer railroad to prove actual application if it claims claimant repaired caboose was engaged in interstate commerce. Fish v. Rutland R. Co. (N. Y.)...

Although, in common-law action for injuries, burden of proving he is aɛsenting employer under act, is upon employer, no burden is upon employer to prove he is employer of less than five employees; burden being upon employee in latter case to absolve himself from consequence of contributory negligence-where declaration set forth common-law liability and nothing more and did not give defendant notice that act would be relied upon, burden was upon plaintiff to prove due care. Nadeau v. Caribou Water, Light & Power Co. (Me.).. It is to be presumed that wages received by employee in particular employment are shown by pay roll. King's Case (Mass.). Proper finding that decedent's widow was living with husband at time of death, establishes conclusive presumption that she was solely and wholly dependent upon him for support, notwithstanding she had property and income of her own. Belle City Malleable Iron Co. v. Indust. Comm. (Wis.)...

Where employee sent to private railroad yard to unload car, twice telephoned employer about nonarrival of trucks and was told when to expect them, was run over and killed in nearby yard through which he might have gone to reach telephone, it will be presumed in absence of evidence to contrary that journey was made to serve master and in course of employment. Smith v. Oesterheld & Son. (N. Y.) Where part of employee's duties are connected with interstate commerce, employer seeking to avoid liability under State Act on ground that liability is under Federal Act, has burden of showing employee engaged in interstate commerce at time of injury. Atchison, T. & S. F. Ry. Co., v. Industrial Commission. (Ill.)

In view of provision that to forfeit benefits, injury must result "solely from intoxication of injured employee", master's evidence held insufficient to overcome presumption that injury did not so result. Richards v. New York Air Brake Co. (N. Y.)

Where employee turned in time at station and was killed within next ten minutes by train on which he was entitled to ride home free, case was continuing employment and burden of proof fell on employer opposing claim. Kowalek v. New York Consolidated R. Co. (N. Y.)

Employee found dead in elevator shaft in building where he worked, will be presumed killed in course of employment. Donlon v. Kips Bay Brewing & Malting Co. (N. Y.) Burden of proof is upon petitioner to prove case within state statute that decedent was engaged at time of accident in service not regulated by Federal Act. Carberry v. Delaware L. & W. R. Co. (N. J.) Where engine hostler is last seen alive working on engine and ten minutes thereafter is found lying by engine dead with bullet wound and there is nothing to indicate suicide or by whom shot was fired, burden is upon employer seeking to escape liability to show injury was caused by fact of other person because of personal reasons and not because of employment. Keyes v. New York O. & W. R'Y. Co. (Pa.)

883

855

31

64

67

98

238

266

333

445

364

443

433

429

419

464

380

Burden of establishing each fact necessary to legal award for death, rests on applicant. Swing v. Kokomo Steel & Wire Co. (Ind.) Commission erred in presuming that, because, employee had cut or pimple on neck, worked in tannery and died of anthrax, he received injury in course of employment. Eldridge v. Endicott, Johnson & Co et al. (N. Y.). Burden is upon claimant to show dependency on deceased employee. In re Stewart (Ind.)

716

516

Where there is no evidence of written contract of employment, it will be presumed that contract if expressed was oral. Nissen Transfer & Storage Co. V, Miller. (Ind.)

519

In action for death of servant doing work of character to make act applicable,
nonsult should not be granted because plaintiff has not offered evidence
that defendant employer had not taken steps necessary to avoid applica-
tion to it of provisions modifying employers' common-law liability. Spi-
lene v. Salmon Falls Mfg. Co. (N. H.)
Burden is on claimant to show not only that injury was result of accident
but that accident arose out of employment-there was no burden on
plaintiff to show that deceased servant hit by his frightened team was not
resting or doing something else wholly unconnected with employment at
the time, not being called upon to prove negative Brown et al. v. Bristol
Last Block Co. (Vt.)

Claimant must prove accident arose out of employment and cannot rely on
presumption as substitute for such proof. White V. American Society
for Prevention of Cruelty to Animals (N. Y.)...
Where brakeman on freight train was killed in railroad's yards, there is no
presumption as to character of employment and burden is on employer
to show employment was in connection with interstate commerce. Polk
v. Philadelphia & R. Ry. Co. (Pa.)
Widow seeking compensation for death of husband, railroad employee, under
State Act, made prima facie case by showing employment, work and
accident in State, burden being on defendant railroad to prove facts
necessary to bring case within tems of Federal Act. Di Donato v.
Philadelphia & R. Ry. Co. (Pa.)...

Burden rests on claimant to show not only fact of injury but that it occur-
red in connection with employment of deceased. Hydrox Chemical Co.
V. Indust. Comm. (Ill.).

404. - ADMISSIBILITY.

556

628

874

896

897

841

238

549

In proceeding before Commission against assenting employer, evidence of
negligence is irrelevant. Nadeau v. Caribou Water, Light & Power
Co. (Me.)..
Rulings on evidence as to relationship of employer and employee held proper.
State ex rel. Berquist v. District Court of Beltrami County (Minn.)..
In servant's action against cattle company for injuries due to exposure to
weather while lost upon prairie, charter of defendant was admissible to
show it was running cattle ranch, not a farm. C. C. Slaughter Cattle
Co. v. Pastrania (Tex.)
On question whether one regularly employed to haul machinery with own
horse and wagon was employee or independent contractor, evidence that
wife was in express business and some times hired other teams to em-
ployer was immaterial. Bristol & Gale Co. v. Indust. Comm. (III.) .... 790
Coroner's verdict that deceased came to death from natural causes and heat
prostration is improperly received in evidence over objection.
Joliet V. Indust. Comm. (111.)

$405.

....

WEIGHT AND SUFFICIENCY.
(1). In general.

599

City of

802

Evidence held to warrant finding that payments made by insurance carrier
were made without authority of employer, the carrier in such case act-
ing as employer's agent. Stephens Engineering Co. v. Indust. Comm.
(III.)...
Liability to pay compensation to dependents of deceased servant under act,
cannot rest upon conjecture or upon choice between two views equally
compatible with evidence but must be based on facts established by
evidence fairly tending to prove them. Edelweiss Gardens v. Indust.
Comm. (Ill.)...

Proof of facts necessary to legal award, must be based on something more
than mere guess, conjecture, etc., although such proof may be made of
circumstantial as well as direct evidence. Board, in determining whether
applicant has discharged burden of establishing facts necessary to legal
award may not only weigh evidence but may also draw reasonable infer-
ences from such facts as it deems established thereby. Swing v. Kokomo
Steel & Wire Co. (Ind.)

It is duty of commission to consider all evidence and act on preponderance
thereof and it should not grant award merely because there is evidence
which tends to support it, nor speculate upon possible state of facts which
does not reasonably appear to exist, from evidence. McGarry v. Industrial
Commission. (Ill.)

205

176

380

372

Evidence held to support finding that cutting off by saw of fingers of plain-
tiff was not intentional to evade military service. Smith v. White (La.)... 531
Issue of fact must be determined by circumstances of particular case presented.
American Smelting & Refining Co. v. Cassil. (Neb.)
553
Evidence as to date of accident held to justify finding that notice was given
within prescribed 30 days. Hydrox Chemical Co. v. Indust, Comm. (Ill.) 811
(2). Relation of parties.
Employer's letter to employee and employer's testimony held to warrant
finding that employment was not terminated prior to employee's injury.
Krobitzsch v. Indust. Acc. Cmm. (Cal.).
Evidence held insufficient to support finding of commission that wife was
interested in husband's business of mason contractor, so that his em-
ployee was her employee as well. Lezala v. Indust. Comm. (Wis.).... 338

136

Evidence held to support finding of Board that claimant was servant and not partner and that partnership between men who had employed claimant continued between them, after partial accounting, as to load of wood on which claimant was working when hurt. Goff's Case (Mass.) 252 Evidence held to support finding of commission that deceased was, at time of injury, employee of subcontractor. Worswick Street Paving Co., v. Industrial Accident Commission. (Cal.)

Proof that injury to railroad watchman, occurring at place he would be while performing special duty to watch for thieves on interstate train, is not inconsistent with his being then in performance of general duties of watchman, bringing him within state Act instead of Federal Act. Atchison, T. & S. F. R'Y Co. v. Industrial Commission. (Ill.)

In proceeding for death of one who had assisted in conducting transfer business, not evidence held to warrant conclusion deceased was employee, not independent contractor or partner. Nissen Transfer & Storage Co. v. Miller. (Ind.)

(3). Acceptance or rejection of statute. Evidence held to justify finding of Board that partnership, engaged in selling horses was operating under act in force at time of accident. Ellsworth v. Indust. Comm. (Ill.)...

342

364

519

180

14

36

(4). Injury arising out of and in course of employment. Award of compensation by commission for permanent partial disability equivalent to total blindness of an eye held sustained by evidence. Pawling & Harnischfeger Co. et al. v. Midenberger et al. (Wis.)...... 121 In proceedings for injuries to employee who fell into elevator shaft of building occupied by employer, evidence held to justify finding that claimant was legitimately seeking to reach place of work. Starr Plano Co. v. Indust. Acc. Comm. (Cal.).. Applicant has burden of proving accident arose out of employment by direct evidence or evidence by which inference can be fairly drawn. George S. Mepham & Co. v. Indust. Comm. (Ill.).. Evidence held insufficient to show with certainty, essential to overcome finding of commission, that teamster kicked by horse would not have died, if he had consulted physician after accident. Banner Coffee Co. v. Industrial Comm. et al. (Wis.). Evidence held insufficient to support finding that claimant in course of employment operating machine was injured on left side of body. Matoris v. Estey Piano Co. (N. Y.).. Evidence that workman doing ordinary work felt pain in side and that next day physician found "right inguinal hernia (traumatic)," is insufficient to show accidental injury in course of employment. Cavalier v. Chevrolet Motor Co. (N. Y.)..

118

102

92

160

167

296

Where employee leaving plant long after customary working hours, discovered fire in plant and returned to put it out but lost life in fire, evidence held to support finding that employee was performing service growing out of employment. Belle City Malleable Iron Co. v. Indust. Comm. (Wis.).. 333 Evidence upon which award of Commission was made for hernia, held insufficient to establish recent origin, and other requirements specified by act. McPhee & McGinnity Co. v. Indust. Comm. (Colo.)... Claimant, having burden of showing accident arose out of employment, need not prove by direct evidence but it is enough to show existence of facts from which it may be inferred. Laskowski v. Jessup & Moore Paper Co. (Del.).. Evidence held to justify findings that son-in-law and general utility man of president of company, though also a director and manager of company which was to take over president's personal business was killed in personal employment of president when they were witnessing test of ammonia tank. Newman v. Mankowitz (N. J.).. Evidence held not to warrant conclusion that commission was bound to find that transfer of germs from injured toe to face, causing fatal disease, was due to own negligence. Bethlehem Shipbuilding Corp. Ltd. v. Indust. Acc. Comm. (Cal.).. Evidence held insufficient to sustain findings that injury to hand, and blood poisoning following it, caused development of cancer two years later. Ortner V. Zenith Carburetor Co. (Mich.).. Evidence held to show housemaid employed by sanitarium, at time of injury was engaged only in washing her own linen and not in her employers' business. Gernhardt v. Indust. Acc. Comm. (Cal.)... Evidence in support of claim under act for death of boy employed by occupant of building, held to justify that employer acquiesced in use of elevator in adjoining building and that deceased was engaged in his work at the time of accident causing his death on elevator. Smith v. H. J. Bartle Mfg. Corp. (N. Y.)... 306

Finding that bran packer was acting within scope of duties when putting on pulley, held sustained by evidence. Helme v. Great Western Milling Co. (Cal.)...

It is incumbent on applicant under act to prove accident to deceased arose out of employment, either by direct, positive evidence, or by evidence from which inference can be drawn-evidence held insufficient to show deceased waiter struck with platter by fellow servant in restaurant suffered injury arising out of employment to sustain award. Edelweiss Gardens v. Indust. Comm. (Ill.)...

128

273

151

141

176

Finding of Board that death of husband was not due to accident arising out
of employment, held sustained by evidence Swing v. Kokomo Steel &
Wire Co. (Ind.)
Evidence held to show that injury and death of truck driver crushed in an
elevator shaft, arose out of employment while getting receipts for load.
Proof that such injury was received in course of employment may be
made by circumstantial evidence. E. E. Walsh Teaming Co. v. Industrial
Commission. (Ill.)

Award will not be overturned as being based on hearsay evidence that injury
arose in course of employment where competent evidence on that issue
was received. Streeter's Dependents v. Hunter. (Vt.)

In proceeding for compensation for death of workman in tannery who died
of anthrax, where there was no evidence as to whether hides such as
those handled by deceased, have bacteria or as to manner in which an-
thrax may be transmitted to men, commission was not authoried to make
award. Eldridge v. Endicott, Johnson & Co. et al. (N. Y.).

380

377

472

716

756

688

In proceedings for compenation for death of employee, alleged due to bruise
on shin. defense being that proximate cause of death was refusal of
deceased to follow treatment prescribed by physician, evidence held to
support finding that accidental bruise was proximate cause of death.
E. Weiner Co. et al. v. Industrial Commission et al. (Wis.).
In proceedings for death of janitor from elevator, there being no eyewitnes-
ses, evidence held sufficient to show injury arose out of employment
Grant et ux. v. Fleming Bros. Co. et al. (Iowa)..
Finding by commission that claimant was injured in course of employment,
held warranted by circumstances shown in evidence in aaddition to em-
ployers' report of injury, stating accident happened on premises and that
claimant was doing regular work. Vogel v. American Chicle et al. (N. Y.) 734
Evidence held sufficient to show that injury to employee's toe was cause or
contributing cause, making operation on toe proper, practicable and neces-
sary. Vaselento v. Kasenetz et al. (N. Y.)
Evidence held to show that death of employee who suffered attack of erysipe-
las with pneumonia developing a few days after injury to head by fall,
resulted from accident and not from disease unconnected with injury.
Wanda v. Jamestown Brewing Co. et al. (N. Y.)....
Evidence held sufficient to show that deceased whose death resulted from fall
of pile of lumber placed in street by defendant, where he was unhitching
horse tied near pile to proceed with work, was in performance of
duties. Western States Gas & Electric Co. v. Bayside Lumber Co.
(Cal.) .....

Finding that truck driver injured while sawing boards in employer's saw
mill for side boards for truck, was within scope of employment, held
sustained by evidence. Calaveras Copper Co. et. al. v. Industrial Ac-
cident Commission. (Cal.)

It is not required that plaintiff's case be established by direct evidence; cir-
cumstantial evidence is sufficient but it must be such as would justify
inference that injury was due to accident arising out of employment and
these facts must not be left to speculation or conjecture. Mayeur v. J.
R. Crowe Coal & Mining Co. (Kans.)

Where helper in restaurant was injured while grinding meat, finding that
such grinding was incidental to employment held sustained by evidence.
Brenner v. Heruben et al. (Wis.)

Evidence held to show that injury of plaintiff while replacing cable on his
machine was inflicted while in employ of defendants and under such
circumstances as to render them liable. Smith v. White (La.)

728

735

-19

485

525

63'

53'

Proof that injury arose out of employment must be based on more than
conjecture but may consist of circumstantial as well as direct evidence
-Where employee cut hand and died from septic poisoning evidence held
to justify finding that accident arose out of employment though there
were no eyewitnesses. Hydrox Chemical Co. v. Indust. Comm. (Ill. ). 811
Evidence he'd to sustain findings that deceased while in the peformance
of duties suffered heat stroke superinduced by excessive amount of heat
in engine room where working on hot day. City of Joliet v. Indust.
Comm. (Ill.).....

802
Evidence held to warrant finding that the deceased contracted anthrax at
defendant's factory by accidentally coming in contact with anthrax
bacilli in course of employment and that death was result of such ac-
cident-where employer corporation knew name and address of de-
ceased employee and president was told shortly after accident that em-
ployee died from poisoning notice of accident, required by Act was
sufficient Chicago Rawhide Mfg. Co. v. Indust. Comm. (Ill.)..
Through bruise arising out of employment was slight and would not have
resulted in permanent disability but for latent disease, held that in-
jury was proximate cause of disability was warranted. Hanson
Dickinson. (Iowa)

V.

Claimant, in proving accident arose out of employment must produce some
legal evidence and may not rely exclusively on hearsay testimony-
where evidence showed that employee, handling horses for humane so-
ciety, died of anthrax through boil in nose, without proof that he came
in contact with any diseased animal, held insufficient to show disease
was contracted in course of employment. White v. American Society
for Prevention of Cruelty to Animals (N. Y.)..

662

837

874

Where employee was injured when using bottle to draw water from bubble fountain, evidence held to sustain finding of Board that injury did not arise out of employment but was due to added peril imported by servant himself. Bolden's Case. (Mass.)

(5). Dependents.

Evindence held insufficient to show that alleged dependents, nonresident aliens, were living. Keystone Steel & Wire Co. v. Indust. Comm. (Ill.).... Testimony tending to show there was actual separation in nature of estrange ment between widow, claimant under act, and deceased employee fo more than year and one half, prior to fatal accident, held sufficient to support finding of commission that parties were not living together. Smith v. Indust. Comm. (Wis.)

Evidence deceased sent two sums of money, three and one year before accident, to father, is insufficient to establish dependency. Peabody Coal Co. v. Indust. Comm. (11.)..

Evidence held not to sustain award for permanent loss of coal miner's eye as result of accident. Spring Valley Coal Co. v. Indust. Comm. (III.). Order of probate court finding woman was widow of deceased and only person entitled to award, is not even prima facie evidence against em ployer to show such applicant was decedent's widow-to recover fo death of employee where only claimant was woman who had sustaine adulterous relations with decedent, evidence held insufficient to warran finding such claimant was decedent's widow under common-law marriage. Illinois Steel Co. v. Indust. Comm. (Ill.)..

In proceeding by wife under act for death of husband with whom she was not living evidence held to show she was not dependent on him. Burdick v. Grand Trunk Ry. System (Mich.)... Evidence held to show decedent's widow whose mind had been impaired for years and who had spent much time in various hospitals but was living temporarily with son in another city when husband was killed, was living with her husband at time of his death. Belle City Malleable Iron Co. v. Indust. Comm. (Wis.)....

...

Evidence in support of claim for death of minor employee who turned earnings over to mother living with father, held to require finding of mother's partial dependency instead of total dependency. Keller v. Industrial Commission et al. (Ill.)......

Award to infant brother held erroneous, there being no evidence that inf was dependent on deceased or that father, natural guardian was una e to support him-award in favor of grandfather of deceasd employ e held not waranted by evidence as to dependency. Mulraney et al. V. Brooklyn Rapid Transit Co (N. Y.)..

Finding of Board that deceased, living with and receiving mail at house of mother, to whose support he contributed, was not living with wife who was working and who lived with her mother held justified by evidence so that presumption of total dependency did not obtain. Breakey's Case. (Mass.)

Evidence held not to show that commutation was for best interest of beneficary. H. W. Clark Co., v. Indust. Comm. (III.)

(6). Compensation.

Finding by commission that employee's weekly wages exceeded $30.00 and
based wages thereon, held warranted by evidence. Shaw v. American
Body Co. (N. Y.)
Where award is made under provision of act covering permanent partial
disability, including disfigurement impairing usefulness or opportunity
of injured employee, not specifically provided for certain definite injury,
fact of disability and resulting diminution of earning power must be
found as matter of fact sustained by evidence-in proceedings to recover
for permanent partial disability caused by loss of testicle, evidence
held insufficient to show any permanent personal disability from such
injury. Centlivre Beverage Co. v. Ross (Ind.)....
Evidence in support of claim by workman whose wages were $5.60 per day
for 25 days in year, held to justify award of $7.00 per week for 413
weeks for permanent partial disability. O. W. Rosenthal Co. v. Indust.
Comm. (Ill.).

212

196

319

Evidence held sufficient to support findings that injured servant claiming compensation under act, suffered total incapacity for period stated. Home Life & Acc. Co. v. Corsey (Tex.) Findings of trial court that injuries referred to in opinion created permanent partial disability of plaintiff's hand held sustained by evidence. State ex rel. Broderick Co. v. District Court of Ramsey County (Minn.) 289 Finding that failure of claimant to give written notice of accident did not prejudice master, held sustained by evdence. Gibbons v. Continental Iron Works. (N. Y.)

432

Award for disability held excessive under evidence as to period of disability. France v. Kingston Shipbuilding Corporation et al. (N. Y.)... 722 In action by employee against insurer to set aside an award of board and recover compensation in lump sum for total and permanent disability, evidence held sufficient to sustain jury's findings in favor of plaintiff. Texas Employers' Ins. Ass'n v. Downing. (Tex.) Award for loss of wages on account of disability held warranted by evidence. Humphreys v. Chevrolet Motor Car Co. (N. Y.)..

582

878