Sidebilder
PDF
ePub

the county clerk shall at once notify the gether with an estimate of the cost of such state highway commission of such intention. improvement, all of which shall have been

[1, 2] There was no attempt to comply approved by the state highway commission. with any one of said sections by the county The county board in this case had comboard of Du Page county, and such was not plied literally with this last provision before necessary. The Roads and Bridges Act clear- having the proposition of issuing the bonds ly provides for two methods of letting con- submitted to a vote of the people, and it did tracts for the building of state aid roads. all that it was required to do before having Under the general method prescribed by the the bond issue voted upon and also the speRoads and Bridges Act, the department of cial tax voted upon. It was then authorpublic works and buildings, under section ized to sell bonds, as it did do, to raise money 26, is to advertise and let the contracts for to build the roads. After raising the money the state aid roads therein provided, and the it is then authorized to build the roads, and sections above named are only applicable when it has let the contracts and has built to the contracts so let, and were enacted the roads it will be entitled to receive alfor the special purpose of binding both the lotments of money from the state, to be apstate and the county to pay for such roads plied on the payment of the bonds to meet so let, one-half by the state and one-half the cost of such improvement or construcby the county.

tion to the extent of not more than one-half Section 15d is a special act or addition to the cost thereof, provided that such roads the Roads and Bridges Act (Smith-Hurd be constructed "under, and in accordance Rev. St. 1923, c. 121, § 19), enacted for the with, plans, specifications, estimates of costs purpose of authorizing any county to build and contracts approved by the state highor let contracts for building state aid roads way commission," and are found, "upon inin such county, and such section provides spection of the state highway engineer, to the whole method therefor without reference have been completed as provided for in said to the other sections above referred to. This contracts." The contracts, under this secsection as passed in 1915 and amended in tion, are clearly to be let by the county, but 1917 provides that in case any county de- the state reserves the right to have the consired to construct or improve highway se tracts completed according to specifications lected as state aid roads more rapidly than and plans of its own suggestion and within its allotment of state aid roads money would its estimates of costs before it will recognize permit, such county might advance the en- any obligation to contribute one-half the cost tire cost of such improvement or construc- thereof. All these plans, specifications, and tion and take the necessary steps to con- estimates by the state highway commission struct and improve the same, and if such may be furnished at the time of the letting roads were constructed "under, and in ac- of the contract for the building of the roads, cordance with, plans, specifications, esti- but they are not conditions precedent to a mates of cost and contracts approved by the vote for bonds and for levying a special tax. state highway commission," and were found, [3] It does not seem to to require any "upon inspection of the state highway en- further discussion of or comment upon the gineer, to have been completed as provided provisions of section 15d to show that secfor in said contracts," the allotment of mon- tions 18, 20, 21, 22, and 24 are not applicable ey made thereafter by the state might be to the procedure for the construction of roads applied on the payment of any bonds or oth- by a county as provided in section 15d, and er obligations which might have been issued that the latter section is rather a special to meet the cost of such improvement or or particular provision for the construction construction, to the extent of not more than of state aid roads by a county, added to the one-half the cost of such improvement or general provisions for the construction of construction. The section then provided that such roads by the state. It is a well-settled the county night issue bonds if the voters rule of construction that where there are at a general or special election gave their two provisions, one of which is general, and consent to raise money to so improve or con- designed to apply to cases generally, and struct such roads, and gave a form of bal. another is particular, and relates only to lot to be used in voting for or against the one subject, the particular provision must bonds. It also authorized the county board prevail and must be treated as an exception to submit a proposition to the voters of the to the general provision. Dahnke v. People, county for the levying of an additional tax 168 nl. 102, 48 N. E. 137, 39 L, R. A. 197. to pay for the bonds, and gave a form of [4, 5] We do not think that appellant's ballot for that vote. The act further pro- contention that the election being opened vided that the county board of such county, one hour earlier, and closed two hours ear. before adopting a resolution to submit such lier than it should have been, furnishes any questions to a vote, shall adopt a resolution ground for sustaining its bill for injunction, specifying the particular roads to be im- even if the election law of 1872 (Laws 1871proved, the type of improvement to be made | 72, p. 380) does apply to this special election on each section of such roads, the proposed as to the opening and closing of the polls. width of the paved and graded roadway, to. There is no allegation in the bill, and no

(146 N. E.) proof was offered to the effect that any legal, expect the polls to close at 7 o'clock p. m. roter was deprived of his right to vote be- and that complainant is not prejudiced by cause of such election opening and closing the fact that they were not so closed or that at the hours aforesaid. The election notice they were opened an hour earlier than the was in full compliance with the law in all old law prescribes. other particulars. The authorities are to [6] The objection that although the voters the effect that where the great body of the of Du Page county approved and voted for electors have actual notice of the time and the bonds in question they did so only upon place of the holding of an election and of the theory that the state would reimburse the questions submitted, the election notice the county for one-half thereof, and that is sufficient, and particularly where no prej- there is no legal obligation upon the state udice is shown. 9 R. C. L. 991, 992. On to do this, we consider without merit. The page 1107 of the volume of R. C. L. just law provides for such reimbursement, and cited it is said:

while it is true that such obligation cannot “Ordinarily a provision as to the time of open- be enforced legally against the state, yet ing and closing of the polls is considered direc- we must assume good faith upon the part of tory, on the general principle that a statute the state, and cannot hold the county bond is to be regarded as directory if the directions issued bad on the theory that voters acted given to accomplish a particular end may be in reliance upon an obligation that the state violated and yet the given end be, in fact, ac- would repudiate. Illinois is not a state that complished and the merits of the case unaffect- repudiates its obligations. ed. The particular hour of the day in the case

The judgment of the circuit court is afof an election is not of the essence of the

firmed. thing required to be done, and where the law

Judgment affirmed. fixes the opening and closing of the polls at sunrise and sunset, the election should not be invalidated because the polls were closed a few minutes before or were kept open a few minutes after sundown."

KARESKE'S CASE,

(Supreme Judicial Court of Massachusetts. It is said on page 1108 of the same volume

Worcester. Nov. 8, 1924.) that, even where the polling place in one precinct was not open at all and no election 1. Master and servant Cw416–Agreement with held, that of itself did not invalidate the regard to compensation final determination of

all issues involved in establishment of right election held in the county, unless it was

to compensation. made to appear that the general result was changed, and that the burden of showing final determination of all issues involved in es

Agreement with regard to compensation is that the result was changed lies upon the tablishment of right thereto, whether or not person contesting the result of the election. embodied in decree of superior court, in view It is again said on page 993 that whether or of Gen. Laws, c. 152, 88 5–12, and in second not any failure to comply with a provision proceeding, court was right in stating question of an election law shall invalidate an elec open was "incapacity," and that insurer could tion depends upon the character of the ir-. not raise question of notice of accident. regularity or defect or the special circum- 2. Master and servant w349_Statute stating stances surrounding the election. In the case failure to make claim shall not bar proceednow in hand the election was held under the ings inapplicable to accident occurring before Australian ballot law (Smith-Hurd's Rev. passing. St. 1923, c. 46, § 288 et seq.), and the people St. 1923, c. 125, stating that failure to make of this state have been acquainted with that claim shall not bar proceedings if insurer has law for many years and know the time of executed agreement in regard to compensation,

is not applicable to accident occurring before the opening and closing of the polls under

its passing. that law. The election law of 1872 is rarely ever in use in any election wherein the polls 3. Master and servant Om398—Statute as to are to be opened at 8 o'clock a, m, and closed

effect of agreement as barring defense of lack at 7 p. m. We think this case should be

of claim includes agreement not approved. governed by the rule announced in Cleland v.

St. 1923, c. 125, stating failure to make Porter, 74 III. 76, 24 Am. Rep. 273, and that executed agreement, gives such effect to agree

claim shall not bar proceedings if insurer has before the people should be deprived entire- ment which has not been approved. ly of the result of this election it was incumbent upon the complainant to allege in 4. Master and servant eww398—Knowledge of its bill facts that would show or tend to

injury to insurer inferable from agreement show that the election would have been oth

as to compensation. erwise, had the law of 1872 been followed. from fact that insurer entered into agreement

Knowledge of injury was properly inferred The natural presumption is that the people in regard to compensation. of Du Page county, who have been voting so long under the Australian ballot law and Appeal from Superior Court, Worcester within the hours prescribed thereby, did not County; Stanley E. Qua, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Proceeding under the Workmen's Com- , ber 14, 1922, and January 29, 1923, and was pensation Act between Joseph Kareske, the in the City Hospital from November 14 to employee, the Worcester Gaslight Company, December 22 where he was operated on for the employer, and the Employers' Liability double hernia. By virtue of the agreement, Assurance Corporation, Limited, of London, compensation was paid by the insurer up to England, insurance carrier. From a decree February 2, 1923. The agreement was apawarding compensation, insurance carrier proved by the board on February 15, 1923. appeals. Affirmed.

After returning on January 29, Kareske conC. C. Milton and F. L. Riley, both of tinued to work for the gas company till June Worcester, for insurer.

16, 1923, when he was discharged. During E. A. D. Moss, of Worcester, for employee. this period he was not at his former work,

and was paid $24 per week. He went to WAIT, J. On January 17, 1923, Josepb work again on August 6, in a Polish grocery Kareske and "the Employers' Liability As-store, where he was paid in goods worth surance Corporation, Limited, of London, $18 a week, but received no money. A hear. Eng.," executed a written agreement for ing was had before a single member of the compensation under the Workmen's Com. Industrial Accident Board on October 17, pensation Act. It recited that the agree. 1923. The record does not disclose how this ment was "in regard to compensation for hearing was brought about, but the report the injury sustained by said employee while of the member sets out that the questions in the employ of Worcester Gas Light Com- before him were (1) whether Kareske receiv. pany, Worcester”; gave as the date of ac- ed an injury arising out of and in the course cident “Nov. 14, 1922"; the place "Steam” of his employment; (2) notice; and (3) in(meaning the boiler room); the nature capacity. Evidence was presented upon all "Hernia"; the cause of injury "Lifting an

these points. The member found that Kaash car”; and stated that there was no oth-reske was not intoxicated; that the agreeer ground or cause of claim. It stated as

ment stands; that there was an early rethe terms of agreement:

currence of the hernia which caused inabil.

ity to get work after June 16, 1923; that “To be paid $16.00 (which it is agreed is two- his wages then were $24 weekly; that reathirds (23) of my average weekly earnings personable efforts were made to obtain work, week during total disability which it is estimated will be weeks, and to be paid $

and that from August 6, he was at work per week for weeks for loss of

with an earning capacity of $18 per week. It is hereby agreed that I have suffered no per- He found Kareske entitled to total disability manent loss of use of any member of my body payment of $16 a week from June 16 to Auas a result of the above accident, except as gust 6, 1923, and to payment for partial above stated."

disability at $7.84 per week (two-thirds of

the difference between $29.76 and $18) from A report was filed with the board by the August 7 to the date of the hearing; this employer on December 6, 1922, which in compensation for partial incapacity to con“Sec. C, Injured Person,” described the in- tinue in accordance with the act. He furJured employee as J. Kareske, an ashman, ther found that the employer had knowla regular time worker in the steam depart- edge of the injury. The insurer claimed a ment, with average weekly earnings of

review. The Industrial Accident Board $29.75, and which in "Sec. D, Cause,” stated, stated the question raised as, “Incapacity,” under “Describe fully how injury occurred: reciting, however, that the insurer raised "J. Kareske was found intoxicated at 2:30 questions of notice and whether the injury

He was in a tunnel underneath the arose out of and in the course of the employHeine Boilers. Foreman Belcher told Mr. Ol- ment. The board aflirmed and adopted the sen, engineer, to send him home. Mr. Olsen findings of the single member on the question did so.

J. Kareske was asleep when found. Few days later man's son caine in to office of incapacity, and found there was due the and said his father was in hospital. When seen employee, $136.64 to the date of hearing, by Mr. Clark, man had been operated on for and thereafter a weekly compensation of double hernia. This report is made out just $7.81 in accordance with the provisions of for a record.”

the statute. The board ruled that because

of the agreement, the question whether the It further reported the man to be at the injury arose out of and in the course of the City Hospital, and the probable duration of employment was not open, and it disregarded his disability to be unknown. A supplemen- all evidence on this point. It found that tal report was filed on January 29, 1923. the insurer had knowledge of the injury, stating that no incapacity resulted, and making this finding as the reasonable inthat Kareske had returned to work on Jan-ference from the fact of the execution of uary 29, 1923, as laborer at $29.75 a week. the agreement for compensation in which A claim for compensation was filed with they agreed upon the time, place, and cause the board on January 4, 1923, and on Feb- of the injury. A majority of the board also ruary 23, 1923. There was no dispute that ruled and found that having entered into Kareske was out of work between Novem- | the agreement which had been duly ap

a. m.

(146 N.E.) proved, the insurer was not at liberty to agreement filed with the department of inraise the question of notice.

dustrial accidents and approved by it; the A decree was entered in the superior second in a decision by a board member, or court that Kareske was an employee un- by a reviewing board, on a review of the der the Compensation Act at the time of decision of the member. Either forms the the injury; that the injury arose out of basis for a decree of the superior court. and in the course of his employment; and The act seeks a procedure “as simple and that compensation was due him to December summary as may be." G. L. c. 152, $ 5. It 6, 1923, in the sum of $136.64 and thereafter leaves to the parties to decide for thema weekly compensation of $7.84 in accord- selves whether to proceed by amicable arance with the provisions of the statute. rangement or by adversary proceedings. If From this decree the insurer appeals. the parties proceed by way of negotiation

[1] The fundamental question presented they must file a memorandum of the agreeby this appeal is the effect to be given to ment reached, whether that agreement be an agreement with regard to compensation, oral or in writing, with the department of a memorandum of which has been filed with Industrial Accidents, and they must obtain the department of industrial accidents and the department's approval of the agreement. approved by it, but which has never been That approval can be given only when the presented to the superior court for the entry terms of the agreement conform to the law. of a decree. A majority of the Industrial G. L. C. 152, § 6. Either party can then pre Accident Board has ruled, in substance, that sent the memorandum of agreement, so ap it stands like a decision of a single member proved, to the superior court and ask that which the parties have not sought to have it be embodied in a decree. G. L. C. 152, 8 11. reviewed; that it is a final determination The matter is ripe for decree upon the apof all issues involved in the establishment proval of the agreement by the department. of the right to compensation; that, as in the Where the parties begin by adversary procase of every other determination, wheth- ceedings, a hearing is had before a single er or not embodied in a decree, the board member of the board who hears the evidence, has jurisdiction to modify the award of decides facts and law, and, in a proper case, compensation as changes take place in the makes an order in regard to compensation. condition of the injured employee, G. L. C. If either party is dissatisfied he can ask a 152, & 12. Bartoni's Case, 225 Mass. 349, review of the single member's findings and 354, 114 N. E. 663, L. R. A. 1917E, 765; rulings by a reviewing board. G. L. c. 152, Hurley's Case, 235 Mass. 387, 126 N. E. 775; 88 8, 10. Sonia's Case, 234 Mass. 475, 125 N. E, 574; At the stage when a decision has been Frizzi's Case, 237 Mass. 460, 130 N. E. 95; made by the single member which neither Emma's Case, 242 Mass. 408, 136 N. E. 125; party cares to. ask to have reviewed, or Johnson's Case, 242 Mass. 489, 136 N. E. where in case review has been obtained, a 563, but the basic questions of liability un- decision is made by the reviewing board, the der the law are not open for further con- adversary proceedings are ripe for a decree; sideration or different determination. and, as in the case of the nonadversary pro

The Workmen's Compensation Act, where cedure, either party may present the papers an employee in the occupations to which it to the superior court and ask for a decree. applies is injured in the course of his em- The agreement, order, or decision is not of ployment from a cause arising out of the em- itself a decree. Johnson's Case, 242 Mass. ployment, substitutes for the rights of ac- | 489, 493, 136 N. E. 563. When the case has tion and grounds of liability given by ear- reached the stage that it is ripe for a delier statutes, and by the common law, a cree, either by adversary or nonadversary system of weekly payments based upon the proceedings, the question open for the suloss of wages resulting from the injury. De- perior court is whether the order, decision, vine's Case, 236 Mass. 508, 592, 593, 129 N. or agreement presented will support a deE. 414. It enforces performance of the ob- cree consonant with the law. Johnson's ligation which it establishes by a decree of Case, supra. The statute, G. L. C. 152, § 11, the superior court (G. L. c. 152, § 11), and says that the "court shall render a decree in it prescribes the process by which a party accordance therewith” (i. e., with the agreecan become entitled to a decree (G. L. c. 152, ment, order, or decision), and this has been $$ 6–11). It contemplates two courses of held to mean in accordance with the law procedure by which an enforceable obliga applicable to the facts presented by the pation may be established. One, G. L. c. 152, | pers. McNicol's Case, 215 Mass. 497, 501, $ 6, 7, 11, by a voluntary accord between 120 N. E. 697, L. R. A. 1916A, 306; Doherthe parties upon the facts of liability, ex- ty's Case, 222 Mass. 98, 109 N. E. 887; Keotent of incapacity, and quantum of compen- hane's Case, 232 Mass. 487, 122 N. E. 573; sation; the other, G. L. C. 152, 88 7-10, in- Bell's Case, 238 Mass. 46, 130 N. E. 67; clusive, by adversary proceedings in the Chisholm's Case, 238 Mass. 412, 131 N. E. course of which liability, incapacity, and 161; Johnson's Case, 242 Mass. 489, 136 N. E. compensation are determined by a tribunal. 563; Emma's Case, 242 Mass. 408, 136 N. E. The first results in a memorandum of the 125; Gillard's Case, 244 Mass. 47, 138 N. E.

384. The superior court, therefore, before en-in the statute requires a party to take out tering a decree, has the duty of framing the a decree. It was here unnecessary. The decree and of satisfying itself that the decree insurer paid what was agreed ; and it ought so framed complies with the law. It must not now to be able to raise any question it hear the parties, but it cannot revise findings then forebore to litigate. of fact for which there is any legal basis in The Industrial Accident Board was right the evidence and papers submitted. Doher- in stating the question open on the second ty's Case, 222 Mass. 98, 109 N. E. 887; proceeding to be "Incapacity"; and the rulKnight's Case, 231 Mass. 142, 120 N. E. 395; ing of the majority was correct in holding Weatherbee's Case, 231 Mass. 297, 120 N. that having gone to an approved agreement E. 815; Sciola's Case, 236 Mass. 407, 128 the insurer could not now raise a question N. E. 666. Where the evidence is set out, it of notice of the accident. is bound by the legal effect of the papers [2, 3] We do not understand that the rulpresented. When all that appears before it ing of the majority of the board rested in is a memorandum of an agreement approved any way on St. 1923, c. 125. By that statby the department, the court is justified in ute, failure to make a claim shall not bar assuming that the jurisdictional facts have proceedings if the insurer has executed an been made out; that a claim has been filed, agreement in regard to compensation. The and that notice has been given, or that the papers show that here claims were made in occurrences which by law excuse proof of due season. The statute was not in force, reasonable claim and notice have been however, when this accident occurred, and shown; that the injured person was an em- it is not applicable. Devine's Case, 236 ployee of an insured employer and that the Mass. 588, 129 N. E. 414; Walkden's Case, injury was received in the course of the em- | 237 Mass. 115, 129 N. E. 396; Lapan's Case, ployment and arose out of it.

237 Mass. 340, 129 N. E. 607. It is to be Proceedings under the act, however, do noted that the statute applies to a condition not necessarily end with the decree or the which does not occur in these proceedings, right to ask for a decree. The statute con- in that it gives to an agreement which has templated that changes may take place not been approved, effect to bar a defense which will require revision of an order for of lack of claim. Barry's Case, 240 Mass. compensation; and it authorizes such re- 409, 134 N. E. 259. vision (G. L. c. 152, 88 7, 12). In the pro It follows, also, from what has been here ceedings thereon it is obvious that all mat- stated that the question whether the inters concluded by the earlier proceedings jury arose out of and in the course of Kabetween these parties and not affected by reske's employment is not now open. The the changed conditions which lead to re earlier proceedings concluded that issue. vision should not again be offered. Hur- Hurley's Case, supra. The ruling of the ley's Case, 235 Mass. 387, 126 N, E. 775; board was correct. Bartoni's Case, 225 Mass. 349, 114 N. E. 663, [4] The board was clearly justified in findL. R. A. 1917E, 765.

ing that the insurer had knowledge of the inIn the case before us we have two pro- jury by inference from the agreement and ceedings, one culminating in the agreement what it stated. We have before us in the of January 17, 1923, the other resulting in papers, the evidence reported by the single this appeal. The first nonadversary, the member which covers the issues of knowl. second adversary. The second involves a edge of the injury by insurer and employer further claim and arises under G. L. c. 152, and agent, and sets out all the facts upon 8 12. So far as the questions of fact involv- which the superior court would have proed in the first proceeding are essential to ceeded had a decree been asked in the earthe determination of the second, they are lier phase of the case. An examination settled. Injury, liability, and compensation satisfies us that there was evidence to jushad been fixed. There was nothing in re- tify a finding of all essential facts in favor gard to them which was open to controversy of the employee in both proceedings. Brown's on an application for a decree. The mere Case, 228 Mass. 31, 116 N. E. 897. No confact that no decree was taken, we regard tention of fraud or mistake has been made. as immaterial. In the great majority of The decree ought not to be disturbed. cases no decree is in fact entered. Nothing Decree affirmed.

« ForrigeFortsett »