its findings on appeal the corrections so made in the finding of the Commissioner." If the trial court finds no harmful error in the appeal from the Commissioner, it should dismiss the appeal; but if it finds harmful error, either in the conclusion of law reached, or in a conclusion of fact reached, or in the finding of a material fact, or the refusal to find a material fact, it should, if the award may be changed or modified, without requiring a further hearing, sustain the appeal to this extent and direct the Commissioner to make the award in accordance with its direction. Where the award cannot be changed or modified according to the trial court's conclusion without a further hearing on the facts, it should sustain the appeal and indicate in the judgment or its memorandum the ground of its action."7

In a case wherein the award was made against both the employer and insurer, it was held but just that the insurer should be allowed to contest the correctness of the award on appeal, though it neglected to take its appeal in the name of its insured, instead of its own name, as provided by the terms of the policy.s

An exception to a finding, on the ground that "the court erred in finding the facts set forth in part first of the finding," is too general, and should specifically point out the paragraphs of the finding of the Commissioner and the part of the finding of the superior court which it was desired to have corrected.""

Under the Washington Act the findings and award of the Insurance Department are reversible only on three grounds: (1) That it acted without or in excess of its powers; (2) that the award was procured by fraud; and (3) that the findings of fact by the De

66 Thompson v. Twiss (1916) 90 Conn. 444, 97 Atl. 328.

67 Id.

68 Wright v. Barnes, 1 Conn. Comp. Dec. 248.

69 Thompson v. Twiss, supra.

partment do not support the award." The finding of the Department of the nonexistence of any one of the four facts essential to establish a right to compensation would result in the denial of an award, and in such case an appeal is allowed.71

Under the provision of the California Act that "the findings and conclusions of the Commission on questions of fact shall be conclusive and final and shall not be subject to review; such questions of fact shall include ultimate facts and the findings and conclusions of the Commission," the correctness of the findings of fact cannot be questioned where there has been presented to the Commission any evidence to support them. The phrase "such questions of fact shall include ultimate facts and the findings and conclusions of the Commission" must relate wholly to conclusions of fact, for the clause expressly so declares. Ultimate facts are nothing more than conclusions of fact drawn from the probative or evidentiary facts; hence matters of fact stated in their ultimate form cannot differ from conclusions of fact, however characterized.72 This Act is not effective to prevent application to the superior court to exercise its original jurisdiction by way of certiorari.78 The question whether a finding on whether a workman was guilty of "willful misconduct" is supported by the evidence, being one going to the jurisdiction, is reviewable on certiorari, where there is no substantial conflict in the testimony.74 Proceedings of the Industrial Accident Commission will not be reviewed on the ground that the Commission's findings are not sustained by the evidence and that the applicant had discovered no evidence material to him; these being grounds on which the Commission may grant a rehearing under Workmen's

70 (Wk. Comp. Act Wash. § 20) Rulings of Wash. Indus. Ins. Com. 1915, p. 24. 71 (Wk. Comp. Act Wash. § 5) Id. p. 14.

72 Smith v. Industrial Accident Commission, 26 Cal. App. 560, 147 Pac. 600. 78 Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35.

HON.COMP.-53

76

Compensation Act, § 82, but the court being restricted to grounds. stated in section 84.75 Section 84 does not include the word "award," and therefore applies only to regulations made by the Commission for the safeguarding of employés against safety orders, decisions, rules, or regulations unreasonable in character. The unreasonableness of an award is not a ground of review. The refusal of a referee in taking testimony to allow cross-examination of a witness upon certain matters is mere error in taking testimony, which cannot be reached by a writ of certiorari, under the California Act." A judgment of the Commission, ordering the employer to pay "to the persons entitled to receive the same the reasonable value of medical and surgical services rendered to the applicant," cannot be enforced until the amounts are designated and the persons named, and until that time no application can be made for the review of such award.78 A decision on certiorari that an award of the Commission is not sufficiently supported by evidence should merely annul the order, leaving the Commission to proceed with a further hearing if it has power to do so." Where the Commission. ordered an employer to pay the reasonable value of medical services received by the injured employé, but stipulated that the claims were to be approved by it before they were paid, the award was. not enforceable as a final judgment because of the reservation, and hence was not reviewable on appeal.80

The findings of the Commission that an employé has been allowed compensation for a longer period than that of actual disability, and that in making the award the Commission failed to credit the em

75 Cardoza v. Pillsbury, 169 Cal. 106, 145 Pac. 1015.

76 Stevens v. Tittle, 2 Cal. I. A. C. Dec. 146.

77 (Wk. Comp. Act, §§ 77, 84) Frankfort General Ins. Co. v. Pillsbury (Cal.) 159 Pac. 150.

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

79 Englebretson v. Indus. Acc. Com., 170 Cal. 793, 151 Pac. 421.

80 Rains v. Diamond Match Co., 171 Cal. 326, 153 Pac. 239.

ployer with a certain sum paid by him to the employé, will not be reviewed (assuming that such findings are reviewable), where the application for rehearing with the Commission does not sufficiently set forth the only claim as to which there might be some ground for contending that there was an entire absence of evidence to support the finding of the Commission of compensation for a longer period than that of actual disability, and where the failure to credit the employer with the sum named is not presented in the application for rehearing.81

DIVISION III.-REVIEW BY HIGHER COURT

§ 246. Remedies

In Minnesota the right of review by certiorari is open to both. parties, by which all rights may be fully protected.82 Claimant cannot, however, have the record reviewed on certiorari issued on the relation of one against whom a judgment for compensation has been rendered. The writ serves the purpose of an appeal. Only the party on whose relation it has issued can complain.83

In New York there is no provision of statute or rule of court requiring the filing of exceptions, or, as in England and some of the states, that the grounds of appeal be stated in the notice of appeal; but it was intended that the procedure, both before the Commission and in the court, should be simple and without unnecessary delay or useless formality, and that until otherwise provided the appeal to the Supreme Court should bring up the whole case, to be heard on the record of the Commission and the briefs and argument submitted by the respective parties. In a recent case it was

84

81 Pacific Coast Casualty Co. v. Pillsbury, 2 Cal. I. A. C. Dec. 538, 171 Cal. 319, 153 Pac. 24.

82 (Wk. Comp. Act, § 30; Gen. St. 1913, § 8225) State ex rel. Nelson-Spelliscy Co. v. District Court of Meeker County, 128 Minn. 221, 150 N. W. 623.

83 State ex rel. Globe Indemnity Co. v. District Court (Minn.) 156 N. W. 120. 84 Kenny v. Union Ry. Co., 166 App. Div. 497, 152 N. Y. Supp. 117.

held that the questions considered were not affected by the fact that after the appeal was taken the New York Workmen's Compensation Commission was superseded by the Industrial Commission.85

Though proceedings under the Massachusetts Act are analogous to the chancery practice, yet, since the Act does not provide for exceptions, the only way by which questions of law may be reviewed in the Supreme Judicial Court is by appeal.s

247. Right of appeal

87

Under the Illinois Act, an order of a superior court awarding weekly payments of death benefits may be appealed to the Appellate Court. The provision of the Massachusetts Act "that there shall be no appeal from a decree upon an order or decision of the Board which has not been presented to the court within ten days after the notice of the filing thereof by the Board" does not mean that the case must be actually brought to the attention of a justice of the superior court within that time. It is a compliance with the statute if the required papers are presented in the court in the sense of being filed as a part of its record within the time prescribed. 88 The Massachusetts Act does not contemplate, either in its letter or its spirit, that the insurer may litigate by appeal to the Supreme Judicial Court the proportions of the divisions of a payment among

85 Carroll v. Knickerbocker Ice Co. (N. Y.) 113 N. E. 507, reversing 169 App. Div. 450, 155 N. Y. S. 1.

86 Pigeon v. Employers' Liab. Assur. Corp., 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737. The requirement of the Act that the superior court enter a decree precludes the possibility of exceptions, and thereby requires that the suit be brought up by appeal from the superior court's decree, and not by exceptions. In re American Mut. Liab. Ins. Co., 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914D, 372; (St. 1911, c. 751) In re McNichol, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306. Appeal is the only method by which questions of law arising under the Act can be brought to the Supreme Judicial Court. In re Cripp, 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828.

87 Lavin v. Wells Bros. Co., 272 Ill. 609, 112 N. E. 271.

88 (Wk. Comp. Act, as amended by St. 1912, c. 571, § 14) In re McPhee, 222 Mass. 1, 109 N. E. 633.