Workmen's Compensation Act (continued).

not in the name of the claimants, came too late, the court having jurisdiction of the cause and of the parties. Gillard's Case, 47.

Appeal.

Upon the record in workmen's compensation proceedings it was held that a contention made in this court for the first time by the insurer that the case was informally entered in the Superior Court, because the presentation was not in the name of the claimants, came too late, the court having jurisdiction of the cause and of the parties. Gillard's Case, 47. Upon a record in proceedings under the workmen's compensation act which showed explicitly that the questions raised before the board were “(1) jurisdiction; (2) dependency," it was held that it was not open to the insurer, upon an appeal from a decree of the Superior Court reversing the ruling of the board and ordering the payment of compensation, to contest in this court for the first time that the record did not warrant a decree for the dependents because there were no findings that the employee elected to come under the act and that he was not injured by his own serious and wilful misconduct. Ibid. Circumstances in which, in proceedings under the workmen's compensation act, where upon the argument in this court of an appeal from the decree, the insurer did not argue the question whether dependency was established, it was held that such question must be taken to have been waived. Ibid. Upon an appeal from a decree of the Superior Court adjudging that a minor child was conclusively presumed in the circumstances to have been wholly dependent upon her father for support, the decree was reversed and leave was given to the minor child to apply to the Superior Court to have the case recommitted to the board for the determination of the issue whether as matter of fact the child was partly dependent for support upon her father at the time of his death. Miller's Case, 281.

A finding of the Industrial Accident Board, upon a claim for review of weekly payments under the workmen's compensation act, that the employee was able to earn an average weekly wage equal to what he was able to earn at the time of his injury, cannot be reviewed. Hudson's Case, 330.

Dependency.

There is nothing in the language, history or purpose of G. L. c. 273, § 8, to change the meaning, established by the common law, of the words, "legally bound to support," in G. L. c. 152, § 32, cl. d. Miller's Case, 281. Circumstances in which a minor child of a deceased employee was held not under G. L. c. 152, § 32, cl. d, "conclusively presumed to be wholly dependent for support upon" her father, who had been divorced from his wife under a decree which gave the custody of the child to the mother. Ibid. The court ordered that leave be given to the minor child, if so advised, to apply to the Superior Court to have the case recommitted to the board for the determination of the issue whether as matter of fact the claimant was partly dependent for support upon her father at the time of his death. Ibid.

Injuries to which Act applies.

The words of the workmen's compensation act, G. L. c. 152, are broad enough to include within the provisions of the act maritime torts except and so

Workmen's Compensation Act (continued). far as jurisdiction of the General Court in that particular is excluded by the grant in art. 3, § 2 of the Federal Constitution of power and jurisdiction to the federal courts in "all cases of admiralty and maritime jurisdiction." Gillard's Case, 47.

Applying the rule that a statute, which would be unconstitutional as applied to a certain class of cases and is constitutional as applied to another class, may be construed to have been intended to apply only to the latter class if such construction seems in harmony with the general purpose of the Legislature, the workmen's compensation act must be and is interpreted as intended only to operate upon the classes of employment and injury within the jurisdiction of the General Court. Ibid.

To whom Act applies.

The dependents of a carpenter, who, while employed in assisting in completing an uncompleted vessel lying at dock in navigable waters, received an injury in the course of and arising out of his employment from which his death resulted, are not precluded from maintaining a claim under the workmen's compensation act, G. L. c. 152, by art. 3, § 2 of the Federal Constitution granting judicial power to the federal courts in "all cases of admiralty and maritime jurisdiction." Following Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469. Gillard's Case, 47.

An action of tort for personal injuries caused to an employee of a subcontractor in the construction of a building by negligence of the general contractor or of his servants or agents cannot be maintained under G. L. c. 152, § 15, against such general contractor by an insurer of the subcontractor under the provisions of the workmen's compensation act after the employee has received compensation under the act from the insurer of the subcontractor, where it appears that both the general contractor and the subcontractor have accepted the provisions of the act. Bindbeutel v. L. D. Willcutt & Sons Co. 195.

Review of Weekly Payments.

A finding of the Industrial Accident Board, upon a claim for review of weekly payments under the workmen's compensation act, that the employee was able to earn an average weekly wage equal to what he was able to earn at the time of his injury, cannot be reviewed. Hudson's Case, 330. Upon an application by an insurer for a review of weekly payments being made to an employee who had received personal injuries entitling him to compensation, where it appeared that the employee had recovered sufficiently to be able "to do certain forms of light work, if available," but there was no evidence from either the employee or the insurer that such light work was available, it was held improper for the board and for a judge of the Superior Court, upon certification of the board's decision, to rule, that "the burden is on the insurer to show that such work is available to the employee," and to order the continuance of the compensation at the same rate. Ginley's Case, 346.

Election of Remedy.

An oral agreement between an employee and an insurance company, which was the insurer of his employer against liability under the workmen's

Workmen's Compensation Act (continued).

compensation act, relative to reserving his rights under the act and to prosecuting an action at law against a third person instead of filing a claim under the act, was held an attempt to accomplish indirectly what is expressly prohibited by G. L. c. 152, § 15, and was illegal and unenforceable. Coughlin v. Royal Indemnity Co. 317.

Proximate Cause.

Findings by the Industrial Accident Board, warranted by the evidence, that there was no causal connection between an injury received by an employee, arising out of and in the course of his employment when he was burned by an explosion of metal polish, and his subsequent death and that the injuries were not caused by the serious and wilful misconduct of the employer, it was held must stand as final and could not be reviewed, and double compensation and compensation for the death of the employee were denied. O'Connor's Case, 445.