DIVISION II.-REVIEW OF DECISION OF SPECIAL TRIBUNAL

The employer must plead matters of defense as to which he has the burden of proof.1 The petition for compensation under the Nebraska Act should set out the injury "in its extent and character," and the judgment should conform thereto, determining plainly the extent and character of the injury, whether the disability is total or partial, and whether temporary or permanent; it should state definitely the time for which periodical payments must be made.2

1 Hunter v. Colfax Consol. Coal Co. (Iowa) 157 N. W. 145.

2 Hanley v. Union Stockyards Co. (Neb.) 158 N. W. 939.

An action under the provision of the New Jersey Act that in case of a dispute over or failure to agree upon a claim for compensation either party may submit the claim to the judge of the common pleas of such county as would have jurisdiction in a civil action cannot be brought in the Supreme Court of New York, though personal service cannot be had on the defendant company in New Jersey by reason of removal of its place of business to New York, the state of its incorporation. A proceeding before the court of common pleas for the computation of compensation is properly set on foot by the person to whom payment is to be made. The small cause court has no jurisdiction to determine the liability of a corporation on an agreement executed by one of its injured employés, under an agreement of settlement, based on this Act.5

The administration of the Rhode Island Act is given to the superior court. Regardless of the amount involved, original jurisdiction of petitions brought under the Act is conferred upon the superior court. There are several provisions in the Act giving to petitions brought under it precedence over other causes in respect to assignment and hearing; and it is provided that, without the intervention of a jury or a Board of Arbitration, the evidence shall be presented directly to a justice of the superior court for his decision, the justices of which court have special training and wide experience as triers of fact. Further, the decision of said justice on questions of fact is conclusive. In these provisions appears the intention of the General Assembly to avoid the delays of a jury triál, and the delays of appellate proceedings with reference to the weight and sufficiency of evidence, and to speed the cause in the superior court to a final determination of the facts involved,

3 (Wk. Comp. Law N. J., P. L. 1911, p. 141, § 2, par. 18) Lehmann v. Ramo Films, Inc., 92 Misc. Rep. 418, 155 N. Y. Supp. 1032.

4 (P. L. 1911, p. 139, § 2, pars. 12, 19) McFarland v. Central R. Co., 84 N. J. Law, 435, 87 Atl. 144.

5 (P. L. 1911, p. 134, § 2, par. 18) Parro v. New York, S. & W. R. Co., S5 N. J. Law, 155, 88 Atl. 825.

leaving only questions of law and equity to be brought up on appeal.

Hearings under the Minnesota Act are to be held at the time and place fixed by the judge, regardless of the time and place of holding the regular terms of court. The proceedings being summary in nature, when all the real parties in interest are present and have been heard, the court must decide the merits of the controversy in a summary manner. This Act provides that "if the employer shall insure to his employés the payment of the compensations provided by part 2 of this Act, in a corporation or associa tion authorized to do business in the state of Minnesota and approved by the insurance commissioner of the state of Minnesota. and if the employer shall post a notice or notices in conspicu ous places about his place of employment, stating that he is so insured and stating by whom insured, and if the employer shall further file copy of such notice with the labor commissioner ci the state of Minnesota, then, and in such case, any suits or actions brought by an injured employé or his dependents shall be brought directly against the insurer, and the employer or insured shall be released from any further liability." The notice herein provided for need not be filed at the time of the accident, but is effective if filed any time before the beginning of the compensation suit.20

It is not error to instruct that the case is within a Compensation Act, where the evidence conclusively shows this to be the fact.

6 Jillson v. Ross (R. I.) 94 Atl. 717.

7 (Gen. St. 1913, §§ 8195-8230) State ex rel. Diamond Drilling Co. v. District Court, 129 Minn. 423, 152 N. W. 838.

8 State ex rel. London & Lancashire Guarantee & Accident Co. of Canada V. District Court (Minn.) 158 N. W. 615.

9 Gen. St. 1913, § 8227.

10 State ex rel. London & Lancashire Guarantee & Accident Co. of Canada v. District Court (Minn.) 158 N. W. 615.

11 (Laws 1911, c. 163) Wheeler v. Contoocook Mills Corp., 77 N. H. 551, 94

Atl. 265.

§ 238. Verdict, judgment, and findings

Error in the amount of a general verdict is not material, where the jury also make necessary findings on which the court can enter a judgment for the proper amount.12

The provision of the New Jersey Act that "within thirty days after the final hearing the judge of the court of common pleas shall file his determination" is directory only.18 Before the trial judge can properly find that the accident arose out of the employment, it is essential that there be some fact or circumstance established to support such finding.14 Error in making an award for a total of four hundred and fifty weeks for a temporary injury, in violation of a provision of this Act that in no case shall the total number of weekly payments be more than four hundred, was not rendered harmless by the reservation of right to a modification in case of an earlier termination of temporary disability.15 The judgment in an action brought by an infant, by his next friend, to recover compensation as an employé for injuries suffered in the course of his employment, binds the plaintiff, to the extent of the questions involved, as effectively as would the judgment in a suit for damages.18

The findings of fact which under the Rhode Island Act should be contained in the final decree are the conclusions of the justice as to the issuable or ultimate facts of the controversy. It is not intended that the decree shall contain a statement of the evidence or the findings of probative facts from which conclusions are to be drawn as to the issuable facts.17

12 Girten v. National Zinc Co., 98 Kan. 405, 158 Pac. 33.

13 Diskon v. Bubb, 88 N. J. Law, 513, 96 Atl. 660.

14 Schmoll v. Weisbrod & Hess Brewing Co. (N. J.) 97 Atl. 723.

15 Birmingham v. Lehigh & Wilkesbarre Coal Co. (N. J.) 95 Atl. 242.

16 (P. L. 1911, p. 134) Hoey v. Superior Laundry Co., 85 N. J. Law, 119, 88 Atl. 823.

17 (Wk. Comp. Act, art. 3, § 6) Jillson v. Ross (R. I.) 94 Atl. 717; Weber v. American Silk Spinning Co. (R. I.) 95 Atl. 603.

In Minnesota, the court has power to open its judgments and correct or modify them upon the presentation of newly discovered evidence, when manifest wrong has been done, upon substantially the principle upon which rests its inherent power to grant a new trial. The statute allowing relief within a year applies.18 Where the workman sues for damages, and it appears at the trial, after the defendant's liability has been determined, that the case is one coming properly under the Compensation Act, the trial court should. make the verdict correspond with the amount allowable under that Act. No new trial is necessary if the liability of the defendant has been determined.19 If the time fixed by the Nebraska court during which periodical payments are to be made does not exceed six months, the order is final; so far as that court is concerned there is no power to modify the order. But if the time for the continuance of payments exceeds six months, then, after that time has elapsed, either party may show to the court that conditions have so changed that a change in the order is necessary. No application of any nature can be made to the district court until after six months have elapsed.20 Compensation is for disability, and ends when disability ends; but the court must find whether the disability is total or partial, temporary or permanent. A judgment that compensation shall continue "during the period of compensation covered by the statute" is too indefinite and unsatisfactory.21

18 Where evidence discovered after the rendition of judgment, if true, showed that the injuries, which resulted in the fracture of a limb, were misapprehended and not correctly described at the first trial, and that they were more serious than. disclosed, it was sufficient to warrant a reopening of the case. (Gen. St. 1913, § 7786, Rev. Laws 1905, § 4160) State ex rel. Klemer v. District Court (Minn.) 158 N. W. 825.

19 Mahowald v. Thompson-Starrett Co. (Minn.) 158 N. W. 913.

20 Hanley v. Union Stockyard Co. (Neb.) 158 N. W. 939.

21 Id.