required to obtain own fuel, not forbidden to use explosives, was killed
in so doing, he was not guilty of recklessness amounting to willful mis-
conduct Ocean Acc. & Guar. Corp. v. Pallaro. (Colo.)
Where employer acquiesced in violation of order, it was nullified and em-
ployee was not guilty of wilful misconduct. Nordyke & Marmon Co.
v. Swift (Ind.)
Pressman catching at falling cards, resulting in injury to hand, although
warned against, was not guilty of wilful misconduct. Hyman Bros. Box
& Label Co. v. Industrial Acc. Comm. (Cal.).....
Where minor employee wiped grease from running machine, despite warning
sign, and was so injured, act was not wilful disobedience. Western Pac.
Ry. Co. v. Industrial Acc. Comm. (Cal.)....
Where evidence established it was deceased's duty to run elevator, that
condition of elevator was not such as to require repairs, contention that
deceased, killed while investigating elevator rope out of order, was
guilty of wilful misconduct and that accident did not arise out of em-
ployment, will be overruled. Rowe v. Leonard Warehouses, Inc. (Mich.).. 393
Machinist helper's omission to wear goggles while at dangerous work, con-
trary to rules and specific instructions, merely because he disliked the
goggles, was "serious and wilful misconduct." McAdoo v. Indust. Acc.
Comm. (Cal.)
Laborer, killed attempting to ride on employer's truck going in direction of
his work held not guilty of willful misconduct. Fiarenzo v. Richards
Co. (Conn.)
SATISFACTION OR RELEASE.
Written contract between employer and dependent widow of deceased in com-
pliance with statute, which was performed for a time, was a settlement
though not mentioning whether parties were engaged in interstate com-
merce. Employers misconception of whether liable under state or federal
statute, or ignorance of the law, was not such mistake as to authorize
setting aside partially performed settlement under state law-where in-
surer stopped payment on such settlement because of claim that deceased
was engaged in interstate commerce, it was estopped to assert injury did
not arise out of employment. Bach v. Interurban Ry. Co. (Ia.)
Under act, authorizing award if not settled by agreement, a settlement made
without fraud after injury is binding. Jenkins v. Texas Employers' Ins.
Ass'n. (Tex.)
Employer cannot complain of agreement for compensation approved by board
because it made no provision for payment during partial disability in
course of recovery-agreement for compensation between employee, em-
ployer and insurance carrier, knowing all details, pursuant to act, is ad-
mission of liability, when approved by board has force and effect of
award. Home Packing & Ice Co. v. Cahill (Ind.)..
Mother, by accepting settlement as administratrix of estate or as individual
for all claims against company, whose negligence caused son's death,
did not thereby release his employer from liability, the employer being
free to proceed against negligent company. Naert v. Western Union
Tel. Co. (Mich.)
Obligation assumed by insurer under act and policy, no broader than act, held
to indemnify employer against liability imposed on him by act and nothing
else. Kratz v. Holland Inn (Iowa.).
Agreement between insurer and widows of diseased employees by which in-
insurer agrees to pay compensation under act is not admission of com-
mon law or statutory liability, and amount agreed to be paid is not
adjustment of claim on causes outside act. Sterling v. London Guar. &
Acc. Co. (Mass.)
Settlement made by workman with employer and insurer on assumption only
one eye was lost, and release executed, does not bar from thereafter
claiming for injury to other eye. Zinken v. Melrose Granite Co. (Minn.) 614
$383. ACCIDENT OR INSURANCE FUNDS, AND CONTRIBUTIONS THERETO.
Discretion of commission, giving employer consent to self-insure to require
deposit of bonds or securities, is not limited to case where there is
doubt at time of employer's ability-requirement to deposit $20,000 in
bonds held not an abuse of discretion. Bank of Los Banos v. Indust.
Acc. Comm. (Cal.)
Act does not preserve right of action existing in favor of injured employee
who would otherwise fall within act against employer who fails to pay
into accident fund amount it would be required to contribute because
employee was within act. Gowey v. Seattle Lighting Co. (Wash.)...... 752
Where injury caused temporary total disability and evidence indicates per-
manent partial disability, employee is entitled to award for entire period
not exceeding 300 weeks, less number of weeks for which compensation
already received. Mack v. Legeal (La.)...
In case of injury to minor employee, act justifies compensation on basis of
probable wage at 21, not after. Western Pac. Ry. Co. v. Industrial Acc.
Comm. (Cal.)
Commission computing compensation of injured minor employee should use
basis of probable wages "at" twenty-one, not those long "after" majority.
Hyman Bros. Box. & Label Co. v. Industrial Acc. Comm. (Cal.)....
Tips received by Pullman car porter are understood by him and company to
be part of wages and can be considered in determining compensation for
injuries. Bryant v. Pullman Co. (N. Y.).....
Tips received by employee are part of remuneration to be considered in de-
termining "average weekly earnings." Hartford Acc. & Indemn. Co. v.
Industrial Acc. Comm. (Cal.)
(2). — Injury to arm, hand, or finger.
In awarding compensation for injuries to hand, commission should determine
wage earning capacity not actual wages received since accident. In re
Behrens (N. Y.)
Loss of arm, hand, or finger.
Where employee by injury lost four fingers on right hand, commission was
authorized to estimate proportionate loss of use of hand. Berman v
Reliance Metal Spinning & Stamping Co. (N. Y.)
Compensation for injury resulting in loss of use of certain fingers with inter-
ference with use of other fingers and hand is not limited to specified
compensation for loss of such fingers but may be awarded under "other
cases.' In re Behrens (N. Y.)......
Where employee, injured and receiving compensation, worked for another and
was injured, resulting in total disability, he is not entitled to receive
more than $10 per week, whether paid by one employer or both. O'Brien
v. Albert A. Albrecht Co. (Mich.)
Where injured employee had worked several years where injured, his average
weekly wages, not those of others similarly engaged, were proper basis
for determining amount of compensation. U. S. Fid. & Guar. Co. v.
Davis (Tex.)
Loss of arm, hand, or finger.
Injured employee's selection of physician other than one of staff maintained
by employer was election at own expense. Swift & Co v. Industrial
Commission (Ill.)
(7). — Loss of leg or foot.
Where injured employee's leg was amputated after he had received hos-
pital and medical services under act and compensation for total inca-
pacity for 54 weeks, the 125 week period of compensation for loss of
leg commenced with date of operation. not of accident. Addison V.
W. E. Wood Co. (Mich.)..
(8). Partial disability.
Evidence and finding pertaining to allowance for compensation for injuries,
examined and no error discerned. Jacobs v. Hamilton Coal & Merc. Co.
(Kan.)
(11). Permanent disability-Loss of or injury to eye.
Permanent loss of use of organ is equivalent to loss of organ itself. Phon-
ville v. N. Y. & Cuba S. S. Co. (Ñ. Y.)....
Injury to employee which resulted in loss of one testicle held a "permanent
injury," Hercules Powder Co. v. Morris Co. Ct. of Common Pleas (N. J.). 525
Workman was not entitled to recover, for injuries classified as permanent
partial disabilities, awards aggregating more than the maximum pro-
vided for permanent partial disability, although received at different
times, where combined injuries did not come within classification of
permanent total disabilities. Biglan v. Indust. Ins. Comm. (Wash.).. 650
Claimant is not deprived of all compensation for refusal to accept medical
services from employer and employment of other physician, but only
of compensation for injury or increase of incapacity caused by refusal.
Neary v. Phila. & Read'g Coal & Iron Co. (Pa.)...
(11%).
Where one eye was injured to half of seeing ability and thereafter both
eyes were injured so that workman could not longer follow occupation,
held he is entitled to permanent partial disability compensation.
Zinken V. Melrose Granite Co. (Minn.).
(12). Loss of arm, hand, or finger.
Employee who has lost three-fourths of right hand is entitled to full com-
pensation for three-fourths of time, not three-fourths of compensation
for full time. Phonville v. N. Y. & Cuba S. S. Co. (N. Y.)..
Despite prohibition that award for more than one finger exceed amount for
loss of hand, one who could not work at occupation by reason of loss of
several fingers and laceration of tendons, could obtain compensation be-
yond limit of 150 weeks provided for loss of hand where disability con-
tinued beyond such time. Schimmel v. Detroit Pressed Steel Co. (Mich.). 413
(14). — Injury to leg or foot.
Injury to leg may justify larger compensation than loss of leg-it was not
error to follow this instead of schedule. Close v. Lucky O. K. Mining
Co. (Kan.)
(17). Deductions or set-offs, and duty of claimant to reduce loss.
Where deceased was paid regular weekly wages about six months, less de-
duction for supplies and tools, without objection, refusal to make any
deduction therefor in determining wages on ground there was no such
express agreement, was reversible error. Reitmyer v. Coxe Bros. &
Co. (Pa.)
(18).
Submission to surgical operation.
Employee who suffered injury resulting in hernia, incurable except by opera-
tion and who refused to undergo operation, should not be allowed com-
pensation while persisting in refusal. O'Brien V. Albert A. Albrecht
Co. (Mich.)
Where arm is so fractured that permanent total disability is created unless
amputated, award is not limited to that of loss of arm, as total permanent
disability may exist without loss or injury to specific member. Simpson
v. N. J. Stone & Tile Co. (N. J.)......
(20). Commutation of payments and award of gross sum.
Under act, commutation and payment in lump sum by order of district court
authorized only in exercise of sound discretion upon an agreement or set-
tlement by parties. Myers v. Armour & Co. (Neb.)
Swallowing pins while trimming show window, rendering claimant bed-
ridden and necessitating surgical operation to save life, was "unusual
circumstance" warranting commutation of award into lump sum-pro-
vision that such commutation be not allowed to satisfy debt, etc., does
not defeat where unusual circumstances require such payment to save.
life. Jensen v. F. W. Woolworth Co. (N. J.)................
![[blocks in formation]](https://books.google.no/books/content?id=-xgWAAAAYAAJ&hl=no&output=html_text&pg=PT17&img=1&zoom=3&q=testimony&cds=1&sig=ACfU3U0AjIHxpBvy2mvoNCc_141J05poig&edge=0&edge=stretch&ci=166,472,289,35)
Where boy, 16, with partially dependent mother, was killed during first week
of last employment, "annual earnings" are ascertained by wages received
during preceding 12 calendar months-annual earnings to be ascertained
by reference to same factors as "average weekly wages" unless inapplic-
able under all circumstances. Freeman's Case-In re Automatic Time
Stamp Co. In re Amer. Mut. Liab. Ins. Co. (Mass.)....
(2). Deductions.
Expenses incurred by parent on account of deceased minor son are pertinent in
determining dependency, but irrelevant in ascertaining amount of com-
pesation. Freeman's Case-In re Automatic Time Stamp Co.-In re
Amer. Mut. Liab. Ins. Co. (Mass.)
(4). Commutation of payments and award of gross sum.
Right to have compensation commuted to lump sum is available only to em-
ployer who pays voluntarily, not to one who refuses until adjudged liable
in proceedings. G. H. Hammond Co. v. Industrial Commission (Ill.).... 176
(5). Apportionment of payments.
Commission was not required to apportion award between widow and child
where there was no contest as to who should receive benefit-provision
for determination of proportionate share of each beneficiary does not
require what proportion every member of the class may receive. Swift &
Co. v. Industrial Commission (Ill.).
Commission, awarding lump sum to administrator, not required to declare
proportion of each beneficiary, such distribution to be made by court ap-
pointing administrator. G. H. Hammond Co. v. Industrial Commission
(Ill.)
Act providing beneficiaries upon death of husband will take by law of de-
scent, means descent relating to community property and not per
capita as provided by law of descent relating to separate property. Texas
Employers' Ins. Ass'n v. Boudreaux (Tex.)...
PERSONS ENTITLED TO COMPENSATION FOR DEATH OF EM-
PLOYEE (DEPENDENTS).
Under statute, award in proper case to father and mother of deceased em-
ployee on ground of dependency, employee having left neither wife nor
children, may be sustained. Pifumer v. Rheinstein & Haas, Inc. (N. Y.).. 136
Dependency of mother justifying award, is personal dependency for support
and maintenance, actual and consistent with position in life, not includ-
ing maintenance of others, or unnecessary contributions-by statute, one
partially dependent, whatever the degree, entitled to minimum award
Rock Island Bridge & Iron Works v. Industrial Commission. (Ills.)
Under statute, children of decedent living with him and his unlawful con-
sort were dependents. Piccinim v. Connecticut Light & Power Co. (Ct.)
Dependent is one who is sustained by, relies for support upon the aid of,
looks for support to, and relies for reasonable necessaries consistent with
the dependent's position in life upon another. Rock Island Bridge & Iron
Works v. Industrial Commission. (Ills)
Dependency of half brother within act, could not be ruled adversely to him
because not made directly to him but to his mother, decedent's step-
mother. O'Flynn's Case. (Mass.)
Where watchman killed by burglars, left dependent widow who also died be-
fore compensation was made and administrator of workman's estate sued,
held that action was prosecuted by proper party, that full amount of com-
pensation was recoverable, and that injury causing death arose out of
employment. Smith v. Kaw Boiler Works Co. (Kans.)
Award made to widow with provision for unpaid balance to surviving
children in event of her death, held proper. Zoladtz v. Detroit Auto
Spec. Co. (Mich.)..
Brothers were beneficiaries within act. American Indemn. Co. v. Zyloni
(Tex.)
Father contributing $12 per week to common fund of $30 for family main-
tenance, held not dependent upon deceased son contributing only like
amount. Klein v. Brooklyn Heights R. Co. (N. Y.).............
Evidence sustains finding that employee met death in course of employment-
children under 16 conclusively presumed dependents and where father
had deserted the deceased mother several years before, children are
"orphans" for purpose of fixing award. State ex rel Radisson Hotel
v. Dist. Court of Hennepin Co. (Minn.).
Alien's widow, residing in foreign country, is not entitled to conclusive
presumption of dependency, but extent of dependency is question of fact.
Perotti's Case (Mass.)
To constitute "desertion" creating presumption that surviving spouse is
wholly dependent upon decedent unless she wilfully deserted him, there
must be cessation of marriage relation, intent to desert, and absence of
consent or misconduct of party alleged to have been deserted-where
husband is unable to support wife, her separation with his consent to
earn wages does not constitute desertion. James Black D. G. Co. v.
Iowa Indust. Com'r (Iowa)..
Woman, who in good faith lived with employee as lawful wife, believing
marriage license constituted marriage, held entitled to recover for his
death as "dependent." Temescal Rock Co. v. Indust. Acc. Comm. (Cal.). 474
Question of dependency to be determined in accordance with fact at time of
injury-parital dependency may be found though dependent might have
subsisted without the aid-finding of partial dependency by claimant,
mother of deceased employee, boy of 16, cannot be pronounced erroneous
in law, where boy after leaving home, promised to send her all earnings
except needs for board and clothes and was killed before first pay day.
so had no opportunity to remit money. Freeman's Case-In re Automatic
Time Stamp Co.-In re Amer. Mut. Liab. Ins. Co. (Mass.)...
SUBROGATION TO RIGHTS OF INJURED EMPLOYEE.
If workman, injured by negligence of third party, obtains from employer as-
signment of right to bring action, it may be maintained directly by in-
jured workman against negligent third party. Thomas v. Otis Eleva-
tor Co. (Neb.)
Where employee is injured in course of employment by actionable negligence
of third party, statutory remedy accrues to him or dependents for com-
pensation against employer and common-law remedy against third party,
though he cannot proceed against both. If he elects the former, he
waives the latter and employer is subrogated. Carlson v. Minneapolis
St. Ry. Co. (Minn.)......
Employer's right to recover amount which he was compelled to pay to em-
ployee's dependents from third party, whose act was cause of accident,
depends upon whether negligence of third party was proximate cause of
injury. Carlson v. Minneapolis St. Ry. Co. (Minn.).
In action against electric company by city as subrogee of widow of fire-
man electrocuted while discharging his duties, defendant cannot set up
contributory negligence of city in not condemning wire's location-
conventional subrogation made by widow of such employee, authorizing
city to sue held valid. City of Shreveport v. Southwestern Gas &
Elec. Co. (La.)...
Compensation paid by insurance carrier to injured employee cannot be re-
covered by insurer from actual wrongdoer from whom employee recov-
ered full damages before payment of compensation. Southern Surety
Co. v. Chicago, St. P., M. & O. Ry. Co. (Iowa).
Injured employee could not repudiate and abrogate ruling of board award-
ing compensation and at the same time treat it as effective and binding
upon employer, seeking to hold it liable for lump sum settlement for
failure to comply with mandates of board. U. S. Fid. & Guar. Co. v.
Davis (Tex.)
TERMINATION OF PAYMENTS.
Compensation awarded partially dependent mother for son's death is not
right vested in her and does not pass over to husband as her adminis-
trator, though he also was awarded compensation, but ceased with her
death. Duffney v. A. F. Morse Lumber Co. (R. I.)....
§ 8984.
Preference given by act is, in case of insolvent corporation under statute,
confined to amount representing weekly award for the two months pre-
ceding institution of proceedings in insolvency. Steel & Iron Mongers,
Inc. v. Bonnite Insulator Co. (N. J.)
§ 394. NATURE AND FORM OF REMEDY.
Procedure under act is governed by practice in equity. Sterling v. London
Guar. & Acc. Co. (Mass.).
Under treaties with Austria-Hungary, its consul general may direct suit
under act on behalf of mother, resident of Austria, for death of son-
nonresident alien may maintain action under act for death of son
against employer. Garvin v. Western Cooperage Co. (Ore.)....
A longshoreman, injured on a vessel, whose employment is covered by state
act which makes the remedy thereunder exclusive, is without remedy
in admiralty. The Howell (U. S.)...
One employed to load vessel while moored on navigable waters at dock in
port to be transported to another state is engaged in work of maritime
nature and if injured while so employed does not come within act-one
thus employed, if injured by automobile negligence of employer, is not
limited to seamen's relief under admiralty rules, but may recover full
damages at common-law--amendment to Federal Code extending rights
and remedies under state acts to persons injured while in maritime work
will not be given retroactive effect. Soderstrom V. Curry & Whyte,
Inc. (Minn.)
Remedy under state compensation acts is not exclusive, and federal courts
must administer maritime law unaffected by state statutes. Rohde v.
Grant Smith Porter Co. (U. S.)
Case which by allegation and proof is brought within statute is controlled
by that act, although its provisions may not have been referred to in
express terms in pleadings. Lusk v. Bandy (Okla.)..
$396. JURISDICTION OF COURTS.
Proceedings to determine award for injury in one county, although employee
resided in another county and insurer and employer were foreign cor-
porations, would not be transferred to latter county on order to show
cause, as change of venue statutes do not apply. State ex rel Nelson
v. Dist. Ct. of Wabasha Co. (Minn.)..
Where carpenters were killed while working in vessel, cases did not come
within act and superior court in approving agreements between in-
surer and widows was without jurisdiction and void. Sterling v. London
Guar. & Acc. Co. (Mass.)..
Servant's personal injuries, occurring not only on navigable waters, but while
at work on vessel, constitute maritime tort of which admiralty court
has jurisdiction-state act is not exclusive and federal courts must ad-
minister maritime law-where servant seeks redress from maritime tort
in admiralty court, rights cannot be barred or affected by state statutes.
Rohde v. Grant Smith Porter Co. (U. S.)..
Jurisdiction of board to approve agreement and of superior court to render
decree in accordance with such approval, necessarily rests upon assump-
tion and fact that agreement concerns employee under act and that
terms of agreement conform to its provisions-superior court cannot
give validity to agreement void in inception because not approved by
board-full performance of conditions is prerequisite to jurisdiction of
superior court which cannot be changed by consent nor waived by acts
of estoppel. Sterling v. London Guar. & Acc. Co. (Mass.).
Acts provide remedies unknown to common law, incapable of enforcement
by ordinary process and not saved to suitors by admiralty statutes-
common-law jurisdiction of state courts over torts committed at sea is
preserved by statute, but remedies by proceedings in rem can only be
administered in admiralty courts. Georgia Cas. Co. v. American Milling
(Wis.)
No presumption of jurisdiction in favor of Industrial Commission exercis-
ing limited or statutory jurisdiction. Tazewell Coal Co. v. Industral Com-
mission. (Ills.)
Agreement between insurer and compensation claimant is not approved un-
less board's formal approval is legal and within its jurisdiction
Sterling v. London Guar. & Acc. Co. (Mass.).
$398. NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPENSA-
TION.
Verbal notice sufficient. Heed v. Industrial Commission. (Ills.)
Where stockholder and director of employer company was near scene of acci-
dent, lifted injured employee, helped carry, and sent to hospital, employer
had sufficient notice under statute. Joseph Halstead Co. v. Industrial
Commission. (Ills.)
Statute requires notice within 30 days, this requirement being jurisdictional.
Barrett Co. v. Industrial Commission. (Ills.)
Claim for compensation must be be unequivocally made within the six months
fixed by statute-where board, in concluding that claim for compensation
was made, determined that claimant probably did not use term "compen-
sation," but said he wanted pay for injury, award could not be predicated
on such guess or probability. Rubin v. Fisher Body Corp'n (Mich.)
Where employee did not immediately notify employer of injuries, obtained
services of family physician, and was taken to hospital, employer was
liable for medical aid received after employer was notified and did not
offer to furnish same-in emergency, injured employee is warranted
in securing medical service at employer's expense without giving notice-
question whether case justifies such action is one of fact. Gage v. Board
of Control Pontiac State Hosp. (Mich.).....
Commission's finding that failure to give notice within time specified did
not prejudice employer, or insurance carrier cannot be sustained where
no reason was shown why notice could not have been given. Combes V.
Gelbel-In re State Indust. Comm. (N. Y.).
|