394 ABATEMENT OR SURVIVAL.

395. WHAT LAW GOVERNS.

Employee working as lineman on interstate railroad anchor bridge was
employed on instrumentality of interstate commerce and liability for
death depends on federal law so that employe's contributory negligence
does not bar recovery. Baker v. New York, N. H. & H. R. Co. (New
York)

Where petition of railroad laborer in one count relled on Federal act and
in another count on common-law liability and railroad denied liability
under each Fount, fact that it requested instruction that it was not liable
at common law will not preclude it from taking judgment after trial
on theory that federal act applied where It also requested instruction
that it was not liable under such act. Williams v. Schaff. (Mo.)
Federal court has jurisdiction to enforce maritime right. Berg v. Philadel-
phia & R. Ry. Co. (U. S.)...

$396. JURISDICTION OF COURTS.

Where complaint alleged that defendant assumed and agreed to pay lia-
bilities of insurance company which insured plaintiff's employer, and
that such company was indebted to plaintiff on ground of personal in-
jury in such employment, held that complaint failed to state cause of
action within gronuds of jurisdiction. Burns v. Millers' Mut. Casualty Co.
(Minn.)

Where beneficiaries of deceased filed claim with board before they filed suit
against insurers, but no notice was issued by board to insurers to an-
swer claim and no action taken by Board in adjudicating it, it can-
not be held that jurisdiction of court to adjudicate matter could not
attach until formal notice had been given by beneficiaries to board
that they would not abide its decision. Southern Surety Co. v. Nelson
(Tex.)

Federal court has jurisdiction to enforce maritime right. Berg v. Philadel-
phia & R. Ry. Co. (U. S.)...

$ 397. BOARDS AND COMMISSIONS.

76

346

621

461

508

621

Commission is administrative body, not court, having no power other than
those granted by statutes of its creation. Brunette v. Brunette (Wia) 236
Commissioner who has made award for loss of right leg and injury to left
for further consideration may designate other commissioner to hear
proceedings relative to modification of original award. Saddlemire v.
American Bridge Co. (Conn.)

Commission has power to promulgate rules and regulations to protect in-
jured employee, employer, and insurance carrier, and to safeguard state
fund, provided such rules are reasonable and conform to spirit of act
rule requiring injured employee to procure commission's consent to leav-
ing locality of employment and providing forfeiture of compensation
accuring after such departure, without hearing and regardless of wheth-
er absence affected disability, is unreasonable
injured employee,
making application for compensation, is bound to take notice of rules
and regulations of commission affecting application. Varoukas v. Indus.
Comm. of Utah. (Utah.)

§ 337/2 REPORTS OF ACCIDENT.
$398.

NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPEN-
SATION.

Though failure to give notice required by act may deprive Commission of
jurisdiction, such failure does not give court jurisdiction of action for
damages. Dominguez v. Pendola. (Cal.)

Prosecution of suit for employee's death held not claim for compensation
within act, requiring it be made within six months after injury or death
-Insurer's attorneys by advising plaintiff's attorneys that matter had
been referred to them, that attorneys for plaintiff should have claim for
compensation filled out, and that insurer was investigating plaintiff's
claim and would advise plaintiffs when completed, did not waive making
claim within six months after death as required. Georgia Casualty Co.
v. Ward. (Texas)
Where injured employee made no claim within time limit of act except in
conversation with employer's physician, such conversation did not con-
stitute claim einployer who furnished injured employee with medical
attention and gave him light work as soon as he was able to do any-
thing, at same wages as before, was not thereby estopped from urging
employe's failure to make timely claim. Stein v. Packard Motor Car Co.
(Mich.)

That employer's bookkeeper had actual knowledge of employee's injury did
not dispense with necessity of giving employer written notice required
by act. Indian Creek Coal & Mining Co. v. Beach. (Ind.)
Notice of injuries to employer within 30 days and claim for compensation
within 6 months are jurisdictional and award of compensation cannot be
sustained in absence of evidence of compliance with such requirement

130

598

108

333

312

where payments were not made by employer under act but voluntarily
without reference to it, widow is not entitled to maintain proceeding
for compensation on theory of waiver of notice and written claim
where employee was injured and returned to work for a time, widow
was not entitled to 18 months from time of returning to work in which
to fille notice of claim. Ohio Oil Co. v. Indus. Comm. (I11.)
Where claim by mother of deceased employee, with no indorseraents indicat-
ing date of filling, was dated within one year of accident and joint claim
by mother and brother was dated more than one year after accident it
will be presumed that mother's claim was filed in time though brother's
claim is too late Hanson v. Flinn-O'Rourke Co. Inc. (N. Y. S.)
Where servant died as result of accident which befell him more than year
previous to death, act does not give right to action to survivors. Mon-
voisin V. Plant. (La.)

Held that corporate employer, though its superintendent, had knowledge
of accident on day following to constitute notice within act. Insana v.
Nordenholt Corp. (N. Y.)

.....

284

476

448

478

3982. ARBITRATION.

......

Fact that arbitrator acted as attorney for claimant several weeks after
arbitration had ended did not render arbitrator ineligible. Dewey v.
Dewey Fuel Co. (Mich.)

330

$399. MEDICAL EXAMINATION OF CLAIMANT.
Commission held to have erred in awarding compensation without requir-
ing injured employe to submit to physical examination. Hafer Washed
Coal Co. v. Indus. Comm. (Ill.)
$.400.

298

PARTIES.

Either administrator, beneficiary, or employer may file petition for adjust-
ment of claim under act. Nat'l Zinc Co. v. Ind. Comm. (Ill.) .......
# 401. PLEADING.

.....

Plaintiffs must allege that claim was made within six months after injury
or death. Georgia Casualty Co. v. Ward. (Texas)
Declaration in case for negligence to recover for injuries received while in
defendant's employ may be amended to allege that defendant was with-
in act and had not accepted provisions thereof. Watts v. Derry Shoe Co.
(N. H)
Declaration for injuries of city employe against street railroad, states com-
mon law action, not action under act. O'Brien -v. Chicago City Ry. Co.
(Ill.)
In action by servant for personal injuries on declaration stating cause of
action at common law, it was incumbent upon plaintiff to prove that
he was in exercise of due care at time of injury, although defendant ad-
mitted he employed more than five workmen and was not "assenting
employer". Nicholas V. Folsom. (Me.)
Defense that plaintiff had not paid compensation by employer must be spe-
cially pleaded in employee's personal injury action against third per-
son. McHugh v. Williams & Payton (R. I.)
Answer seeking to bring employee within act, which fails to allege that em-
ployee was one of four or more parties regularly employed, is demur-
rable- complaint for personal injuries to employee which does not al-
lege facts bringing plaintiff within act need not allege employer's fail-
ure to secure payment of compensation. Michel V. American Cinema
Corp. (N. Y.)

Plaintiff must aver and prove that there was agreement in writing or writ-
ten notice given prior to accident that employee's contract of hiring
was not made subject to act. McNutt v. Adams Express Co. (N. J.)
$402. EVIDENCE.

403.

.....

21

108

71

144

182

506

375

553

Minerly v

83

PRESUMPTIONS AND BURDEN OF PROOF.
Cause of accident cannot be presumed but must be established.
Kingsbury Const. Co. (N. Y.)
Whoever files petition under act, existence of beneficiary at time of hearing
is essential to award and must be affirmatively shown,-Though deceased
employee's father and mother were seen at their residence in Russian
Poland in August, 1915, presumption, of continuance of life is insuf-
ficient for necessary showing of existence of beneficiaries at time of
hearing 26 months later, country in meantime having been over-run
by hostile armies and devastated. Nat'l Zinc v. Ind. Comm. (II) .. 21
Where railroad foreman was killed by car of his employer, standing on side
track in lumber yard, waiting for his men to arrive so he could direct
them, and no connection of deceased with interstate commerce was
shown award under act will not be disturbed. Saccomano v. Grasse
River R. Corp. (N. Y.)

Railroad resisting payment of compensation for death of employe on ground
he was employed in interstate commerce has burden of proving such
fact. Smith v. Philadelphia & R. Ry. Co. (Pa.)

205

213

Applicant has burden of furnishing evidence from which inference

can be

legitimately drawn that accident arose out of and in the course of em-
ployment. Thier v. Widdifield. (Mich.)
Where employee's body was found on pavement under window of mill where
he worked, and there was no evidence of suicide or murder, presump-
tion against commission of crime is sufficient to support evidence that
death resulted from accident - burden is on claimant to show that
death was caused by accidental injury arising out of employment.
Sparks Milling Co. v. Indus. Comm. (Ill.)
Where intoxication of employee is pleaded as defense, defendant has bur-
dent of affirmatively establishing such intoxication. Hartford Acc. &
Indem. Co. v. Durham. (Tex.)

339

299

395

Where claimant dependent on deceased son, received support from son's
earnings or rent of son's house it is fair inference that expenses of house
paid by son were paid with rent. Blozina v. Castile Mining Co. (Mich.) 327
One claiming compensation has burden of proving statutory essentials of
case and must establish that injuries arose out of employment where
minor girl was accustomed to take elevator in coming to and from
work, or in course of work, and was so killed, finding she was engaged
in duties of employment held not ur-easonable inference There is
natural presumption that one charged with performance of duty found
injured at place where duty may have required him to be is injured
in course of and as consequence of employment. Saunders v. New Eng-
land Collapsible Tube Co. (Conn.)

Mc-

271

497

525

Where railroad's servant was injured in course of employment burden is
on railroad to show case is controlled by federal act making negligence
the test of lability. Knorr v. Central R. R of N. J. (Pa.)
Wife living with husband and claiming compensation for death of son will
be presumed supported by husband and to rely upon him alone.
Donald v. Great Atlantic & Pacific Tea Co. (Conn.)
Injured employee, entitled to compensation, who has left locality of em-
ployment without commission's consent, in violation of its rules, has
burden of showing he had good cause for failure to procure consent
and that absence has not prejudiced employer, insurance carrier or state
fund, and did not prolong period of disability. Varoukas v. Indus Comm.
of Utah. (Utah)
Burden is upon injured employee to show that illness resulted from excep-
tional exposure. Engels Copper Mining Co. v. Indus. Acc. Comm. (Cal). 624
Presumption is that deceased was in performance of duty to close windows
when killed by collapse of building from tornado. Reid v. Automatic
Elec. Washer Co. (Iowa.)

598

662

Where employer has rejected act, and employee is injured, there is pre-
sumption that injury was proximately caused by employer's negligence.
Mitchell v. Mystic Coal Co (Iowa.).

657

Rule that dying declarations are admissible in civil cases as followed and
applied in compensation case. Vassar v. Swift & Co. (Kan.)
In issue as to percentage of loss of use of employe's injured member it is
competent to prove conditions such as comparative ability to do certain
things in use of injured member before and after accident. Interna-
tional Coal & Mining Co. v. Indus Comm. (Ill.)
Hearsay statements in report of commission to make investigation are not
competent evidence. Blozina v. Castile Mining Co. (Mich)
Affidavit of fellow employee, in army at time of trial, that deceased em-
ployee was attempting to close windows, part of duty at time of acci-
dent, should have been considered as evidence. Reid v. Automatic Elec-
Washer Co. (Iowa)

166

278

327

662

Finding of commission in favor of claimant as to cause of injury to work-
man, must rest on legal foundation, not on presumption. Nestor v. Pabst
Brewing Co. (N. Y.)

In action by compensation insurer, evidence held to show conclusively that
deceased employe was guilty of contributory negligence in stepping into
elevator shaft. Globe Indem. Co. v. Hook (Cal.)
Evidence of employer as to acceptance of counter offer of indemnity com-
pany on receiving application stating minimum premium held not suf-
ficient upon which to base finding that employer accepted offer prior to
accident Evidence held insufficient to support finding that local agent
of company had authority to bind company by parol from application
Finding that it was custom and practice that employer was covered
from date of application where terms were not unconditionally accepted
by company held not supported by evidence. Western Indem. Co. v.
Indus. Acc. Comm. (Calif.)

-

85

127

256

Claimant has burden of proof that injury was accidental but proof may be
direct or circumstantial. Steel Sales Corp. v. Indus. Comm. (Ill.) 303

Commission is not justified in finding for one party to proceeding because
there is some evidence which would justify finding nor should it base
finding on testimony which facts and circumstances show to be untrue.
Hafer Washed Coal Co. v. Indus. Comm. (Ill.)

(2). Relation of parties.

Evidence held not sufficient to establish that plaintiff when injured was em-
ployed by subcontractor and that he was entitled to recovery. Spencer
v. Marshall (Kan.)
Evidence held to show that defendants were operating drilling-machinery
on which plaintiff was injured there was not sufficient evidence to
show that plaintiff was subcontractor. Spencer v. Marshall (Kan.)

....

(3). Acceptance or rejection of statute.
Held that there was no evidence from which agreement to pay compensation
for injury within one year after accident could be inferred. Randolph v.
Hammersley Mfg. Co. (N. J.)

(4). Injury arising out of and in course of employment.
Finding of commission that deceased employee, who never resumed work
after injury and died after fall in street, died as result of valvular heart
disease aggravated by previous injury, held not warranted. Nestor v.
Pabst Brewing Co. (N. Y.)

Finding of commission that certain accident was caused by "encephalitis",
necessarily involving finding that claimant suffered fractured skull, was
not sustained where there was no evidence that the disease was caused
by fractured skull. Donovan v. Alliance Elec. Co. (N. Y.)
Finding by board that death resulting from carcinoma had been hastened by
accident held warranted. Whittle V. Nat'l Aniline & Chem. Co.
(Penn.)

Evidence held to sustain finding of board that death of engineer killed in
falling from train carrying employees from mine where he was employed
occurred by reason of special hazards incident to his work, arising out
of employment. Indian Creek Coal & Mining Co. v. Wehr. (Ind.)
Evidence held to sustain commission's award for partial loss of use of em-
ployee's hand, based on evidence that infection causing loss resulted in
course of employment and not from employee's act in scraping callous
from hand with knife. Challenge Co. v. Ind. Com. (Ill.)
Where carpenter bruised hand in using screwdriver, resulting in felon, in-
jury cannot be deemed caused by "accident" evidence held insufficient
to show that felon resulted from pressing of screwdriver with palm of
hand Woodruff v. R. H. Howes Const. Co. (N. Y.)
Compensation was properly awarded for death of employee of printing es-
tablishment, found on concrete floor with fractured skull between two
rolls of paper where there were also other obstructions in dark room.
Graffe v. Art Color Printing Co. (N. Y.)
Award by commission made by theory that servant died as result of carbon
monoxide poison incurred during employment, held supported by sub-
stantial evidence. Amalgamated Sugar Co. v. Indus. Comm. of Utah.
Evidence held sufficient to support jury finding that hernia for which com-
pensation was granted did not exist in any degree prior to injury, though
it was undisputed that employee had another hernia prior to injury.
U. S. Fidelity & Guar. Co. v. Ross (Tex.)
Evidence held insufficient to sustain finding that pain to which employee
was subject had been reasonably necessary result of employment-Nor
that employe had neurosis or any disease. Pimental's Case. (Masa )
Evidence discloses no facts which will justify inference that "Hodgkin's
disease" resulted from ulcers in nose or that they were caused by in-
haling fumes of acid used in occupation. State ex rel. Johnson Hardware Co.
v. District Court of Carver County. (Minn.)
Evidence that lightning struck employer's house and that employee was
killed while standing near electric light wire in barn which was not
struck, held insufficient to warrant finding that death was from injury
arising out of employment. Thier v. Widdifield. (Mich.)
Claimant may show that death was caused by accidental injury arising out
'of employment by circumstantial as well as direct evidence but award
cannot be based on surmise or conjecture where employee's body was
found on pavement under window of mill where he worked, evidence
held sufficient that death arose out of employment. Sparks Milling
Co. v. Industrial Comm. (III.)

-

.....

........

..............

In proceeding for death of employee struck by lightning after having left
road on which he worked evidence held to justify finding that he was
seeking shelter from storm when killed. State Road Comm. v. Indus.
Comm. of Utah. (Utah.)

Evidence that employee's sig' began to fall shortly after injury to one eye
and that in seven months he lost sight of both eyes with expert testi-
mony that condition may have resulted from injury, held sufficient to
support finding that bdness was due to injury. Indiana Power &
Water Co. v. Miller. (Ind.)

.....

Award for injury to eyesight of employee burned in course of duties held
warranted though oculists testified that defective eyesight was from other
causes, there being testimony that he previously had no ocular defect.
Raina v. Standard Gaslight Co. of City of N. Y. (N. Y.)...
Evidence held to sustain conclusion of commission that employee con-
tracted influenza in course of employment. City & County of San Fran-
cisco v. Indus. Acc. Comm. (Calif.)
Finding that disease was accelerated by accident held legitimate inference
from evidence. Finkleday v. Henry Heide, Inc. (N. Y.)
In proceeding for death of servant from peritonitis following operation,
finding that death resulted from accidental injury in course of employ-
ment held not sustained by evidence. Hoffman v. Pierce Arrow Motor
Car Co. (N Y.)

....

Evidence held to warrant finding that cerebral hemorrhage was result of
accident. St. Clair v. A. H. Meyer Music House (Mich.)
Findings of trial court in action under act held sustained by sufficient evi-
dence. State ex rel. George D. Taylor & Sons v. District Court of Ram-
sey County (Minn.)
Where employee, whose duties required him to visit local agents or dealers
in state, was killed when sheriff's posse attempted to stop automobile in
which he was riding, held that findings that injury was accidental and
arose out of and in the course of employment are sustained by evidence-
evidence does not call for finding that employee was injured by act of
third person or fellow employee so as to be excluded from compensa-
tion. Wold v. Chevrolet Motor Co. (Minn.).....
Evidence held to sustain finding that deceased accidentally drowned him-
self while engaged in duties in course of employment. Kropf v. Mich.
Bean Co. (Mich.)

Evidence that employee contracted incapacitating disease while working un-
der direction of superintendent, held sufficient to sustain award. En-
gels Copper Mining Co. v. Indus. Acc. Comm. (Cal.).....
Evidence held to justify finding in employee's favor. Hackley-Phelps- Bon-
nell Co. v. Indus. Comm. (Wis.)..
Evidence held sufficient to show that servant was in part of building, where
killed, pursuant to duty and was killed in employment. Reid v. Auto-
matic Elec, Washer Co. (Iowa)

490

428

565

569

540

698

699

686

624

724

662

(5). Dependents.

Evidence held insufficient to sustain finding that claimant made average
weekly wage of $28.84 when her regular wages were $2.50 per day.
Vaughn v. Barnet Leather Co. (N. Y.)

.....

90

224

344

Proof that deceased employee, nineteen year old farmer boy who was par-
ents' chief help on rented farm, sought temporary employment to ob-
tain money with intent to return to assist parents who were poor and
failing in health and strength, held to justify finding that they were
dependent. Southern Surety Co. v. Hibbs. (Tex.)
Evidence held to show actual dependency on son-where persons of
limited means, otherwise entitled to compensation, actually received
contributions for support from wages, facts constitute evidence strongly
tending to estabish dependency. Day v. Sioux Falls Fruit Co. (S. D.)....216
Held where decedent gave mother practically all wages, yet as father was
in good health and followed occupation
and sister, earning $120 &
month contributed nothing to support of parents, finding that parents
were not dependent was warranted. Rudnick v. White Bros. (Del.)....138
Fact that relator was voluntarily living apart from husband removed pre-
sumption of dependency and evidence shows no actual dependency with-
in act. Kile v. District Court, Hennepin Co. (Minn.)
Testimony as to dependency sufficient to make applicable statutory presump-
tion, in connection with documentary hearsay evidence, will sustain
finding. Hanson v. Flinn-O'Rourke Co, Inc. (N. Y.)...
Findings held to establish partial dependency of father and mother of
deceased. Geo. A. Lowe Co v. Indus. Comm. of Utah. (Utah.)
Evidence held to establish that aged mother in poor circumstances, resid-
ing in Italy, whose children lived in this country and to whom deceased
had been sending periodical sums for her support, was entitled to com-
pensation as dependent. Venuto v. Carter Lake Club. (Neb.)
Evidence held insufficient to support finding of dependency on part of mother
and infant brother of decedent who paid mother $15 per week. Fosket
v. A J. Buschmann Co. (N. Y.)
Evidence held to justify findings that at time of accident claimant widow
was living apart from husband for justifiable cause, and was dependent
within meaning of statute. Gates v. A. G. Dewey Co (Vt.)...

(6). Compensation.

......

Evidence held to sustain finding as to amount of daily earnings of others
of same class as deceased employe doing same work during preceding
year. Southern Surety Co. v. Hibbs. (Tex.)..

476

511

594

562

719

224