DIVISION II.-REVIEW OF DECISION OF SPECIAL TRIBUNAL

§ 239. Jurisdiction

The manner of beginning a proceeding for compensation in the circuit court of Illinois is not substantially different from an appeal from a judgment of the county court on a probated claim, or an appeal from a justice of the peace, and it is almost exactly the procedure provided for the review of the judgments of justices of the peace by writ of certiorari. The character of the right, the method of procedure, and the judgment rendered are all of the kind recognized by the common law, and bring the case within the terms of the statute providing for appeals to the Appellate Court.22

That the Industrial Accident Commission of Maryland sits in Baltimore does not authorize the superior court of that city to entertain jurisdiction of an appeal by which it is sought to review the Commission's findings.23 Since the insurance carrier is merely a surety for the employer, and the employer and employé are the real parties in interest, the court which has jurisdiction over the place where the accident occurs has jurisdiction of appeals; there is no concurrent jurisdiction of the court where the insurance carrier has its office.24

The provision of the Wisconsin Act that service on the secretary of the Commission, or any member of the Commission, shall be a completed service, does not dispense with the necessity of service being made on the defendant. The defendant must be served as in ordinary cases.25

22 (Appellate Court Act, § 8 [Hurd's Rev. St. 1913, c. 37, § 25]; Practice Act [Hurd's Rev. St. 1911, c. 110] § 91; Wk. Comp. Act, Laws 1911, p. 314) Christensen v. R. W. Bartelmann Co., 273 Ill. 346, 112 N. E. 686.

23 (Wk. Comp. Act, § 7) Brenner v. Brenner, 127 Md. 189, 96 Atl. 287. 24 Id.

25 (St. § 2394-19) Hammond-Chandler Lumber Co. v. Indus. Com. of Wis. (1916, Wis.) 158 N. W. 292.

HON.COMP.-52

Where the Compensation Commission of New York is in error in its decision adverse to plaintiff, plaintiff's remedy is by appeal to the Appellate Division of the Supreme Court.20

§ 240. Jury trial

27

Where the employer pleads that the injury was due to the employé's willful negligence or intoxication, a jury trial may be demanded thereon in Iowa. An interlocutory order, made at the first hearing, awarding a jury trial on appeal from an award of the Industrial Insurance Department of Washington, being subject to change and correction, may be rescinded at the final hearing.28 The provision of the Connecticut Act that the acceptance of its compensation provisions shall constitute a "mutual renunciation and waivof the right of jury trial on all questions affecting compensation" does not refer to the hearing on appeal in the superior court, but includes only the original proceeding before the Commission. It was inserted to guard against a possible constitutional objection to the Act, and was otherwise unnecessary.29

er

§ 241. Appeal and review

Since a party appealing from a ruling of the Maryland Industrial Accident Commission has the burden of showing error in the decision of the Commission, which must be taken as prima facie correct, he has a right to open and close.30 A party claiming to be

26 (Wk. Comp. Act, § 23) Naud v. King Sewing Mach. Co. (1916) 95 Misc. Rep. 676, 159 N. Y. Supp. 910.

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

28 Sinnes v. Daggett, 80 Wash. 673, 142 Pac. 5.

29 (Wk. Comp. Act, pt. B, § 1) Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245.

80 (Wk. Comp. Act, § 55) American Ice Co. v. Fitzhugh (1916) 128 Md. 382, 97 Atl. 999.

aggrieved by the action of the Committee of Arbitration of Michigan must first seek a review of the committee's action by the Industrial Accident Board before resorting to the court in certiorari proceedings to review the Committee's award.31 On a petition to review an order of the Board denying an application to stop compensation, the essentials leading up to the award, or its equivalent, are generally to be taken as res judicata, except the physical condition of the injured employé, which naturally and legally remains open to inquiry.32

Where the employer had given notice of acceptance of the Wisconsin Act, and acted throughout as though it were subject to the Act, it could not be heard to contend on appeal that there had been no acceptance of the Act, and that the Commission had no jurisdiction.33

One method of review of an award of the Industrial Board provided for by the Illinois Act is to sue out of the circuit court a writ of certiorari to the Board.34

The New York Act gives a right of appeal only to an employer privately insured.35 Since an employer insured in the state fund has absolute immunity from liability, its interest is too remote to authorize an appeal from an award of the Commission for death of an employé. Where the defendant in a hearing before the Commission relies on the defense that the action must be brought by the deceased's personal representative, instead of by his dependent, and the Supreme Court, in affirming the decision of the Commis

36

31 Schrewe v. New York Cent. R. R. Co. (1916, Mich.) 158 N. W. 337.

32 Spooner v. Estate of P. D. Beckwith, 183 Mich. 323, 149 N. W. 971. There

was a similar holding in Mead v. Lockhart, 2 B. W. C. C. 398.

33 Milwaukee Western Fuel Co. v. Indus. Com., 159 Wis. 635, 150 N. W. 998.

34 Munn v. Indus. Board (1916) 274 Ill. 70, 113 N. E. 110.

35 Crockett v. State Insur. Fund, 170 App. Div. 122, 155 N. Y. Supp. 692.

36 (Wk. Comp. Act, Consol. Laws, c. 67, §§ 53, 23) Id.

sion, holds that the dependent was a proper claimant, it may nevertheless refer the matter back to the Commission for a further hear ing upon the status of the employé and the nature of his employment.3

37

A petition, setting forth briefly the nature of the questions to be decided, may, without impropriety, be filed in the superior court in Massachusetts, though the Act requires only a bare presentation of certified copies of the Industrial Accident Board's order or decision.38 On appeal by the insurer, the Board may set out the evidence, or the substance thereof; but it is not essential that it do so.38 39 In such case, the Board cannot make a new finding, but can merely complete the record according to the facts and return it, where the cause is remitted to the Board on account of dimin tion of the record.40

An original proceeding in review of an award of the California Commission should be against the Commission by its name, "Indus trial Accident Commission," and not against the members of the Commission individually. The person or persons interested i maintaining the award also should be joined.11

Where, on an application for a writ of review directed to the California Commission to review an award made on account of injuries, the petition fails to sufficiently show that there was not in the evidence sufficient support for the finding of the Commission that the accident arose out of and happened in the course of the employment of the injured person by the petitioner, the writ wil not issue on the ground that the evidence shows that the injuries

37 Dearborn v. Peugeot, 170 App. Div. 93, 155 N. Y. Supp. 769. 88 (Wk. Comp. Act, pt. 3, § 11, as amended by St. 1912, c. 571, § 14) In re American Mut. Liab. Ins. Co., 215 Mass. 480, 102 N. E. 693, Ann. Cas 19147.

372.

39 In re Doherty, 222 Mass. 98, 109 N. E. 887.

40 Id.

41 Carstens v. Pillsbury (1916, Cal.) 158 Pac. 218.

were received while such person was employed as an independent contractor.42

An appeal by the Wisconsin Industrial Commission will be dismissed, where it appears that it is not prejudiced by the judgment, and that the judgment is one sought by but denied to it, and granted on motion of its codefendant.43

§ 242.

Review of findings and decision

44

Where a Workmen's Compensation Act does not expressly give a retrial, it will be construed to intend to the contrary. An award made by consent of appellants will not be disturbed on appeal.45 As a rule the findings of fact 46 made by a Board or Commission are

42 Garratt-Callahan Co. v. Indus. Acc. Com. of the State of Cal., 2 Cal. I. A. C. Dec. 953, 171 Cal. 334, 153 Pac. 239.

43 Hammond-Chandler Lumber Co. v. Indus. Com. of Wis. (1916, Wis.) 158 N. W. 292.

44 Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245; Pigeon's Case, 216 Mass. 51, 52, 102 N. E. 932, Ann. Cas. 1915A, 737; Donovan's Case, 217 Mass. 76, 79, 104 N. E. 431, Ann. Cas. 1915C, 778; Herrick's Case, 217 Mass. 111. 112, 104 N. E. 432; Bentley's Case, 217 Mass. 79, 80, 104 N. E. 432; Main Colliery Co. v. Davies, 16 T. L. R. 460, 2 B. W. C. C. 108.

On appeal from a Compensation Commissioner, the superior court cannot retry the facts, but can merely inquire into the facts to determine whether or not the finding and award were authorized, or so unreasonable as to justify interference by the court. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372, L. R. A. 1916A, 436; Hotel Bond Co. Appeal, supra.

45 Cunningham v. Buffalo, C. & B. Rolling Mills, 155 N. Y. Supp. 797. 46 "Findings of fact" mean findings of ultimate, rather than evidentiary, facts. Northwestern Iron Co. v. Indus. Com. of Wis., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877; Briere v. Taylor, 126 Wis. 347, 105 N. W. 817; Chippewa B. Co. v. Durand, 122 Wis. 85, 99 N. W. 603, 106 Am. St. Rep. 931; McDougald v. New Richmond R. M. Co., 125 Wis. 121, 103 N. W. 244; Travelers' Ins. Co. v. Hallauer, 131 Wis. 371, 111 N. W. 527; Cole v. Cole, 27 Wis. 531.

An award made to an employé after an examination and the hearing of expert testimony was a "decision of a question of fact," which is not reviewable. (Wk. Comp. Act, Consol. Laws, c. 67, § 2, gr. 21, § 20) Goldstein v. Centre Iron Works, 167 App. Div. 526, 153 N. Y. Supp. 224.