Brady v. Industrial Commission of Colorado

• Decision Date: 13 September 1926
• Docket Number: 11599.
• Citation: 249 P. 6,80 Colo. 62
• Parties: BRADY v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

249 P. 6

80 Colo. 62

BRADY v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 11599.

Supreme Court of Colorado, En Banc.

September 13, 1926

Error to District Court, Pueblo County; Samuel D. Trimble, Judge.

Proceeding under the Workmen's Compensation Act by James Brady claimant, opposed by the Colorado Fuel & Iron Company, the employer and self-insurer. Compensation was denied by the Industrial Commission, claimant's petition to review in the district court was dismissed, and claimant brings error.

Affirmed.

John A. Martin, of Pueblo, for plaintiff in error.

William L. Boatright, Atty. Gen., and Jean S. Breitenstein, Asst Atty. Gen., for defendant in error Industrial Commission of Colorado.

Fred Farrar and Wendell Stephens, both of Denver, for defendant in error Colorado Fuel & Iron Co.

SHEAFOR J.

This action was brought by the plaintiff, Brady, in the district court, to review and set aside the findings and award of the defendant the Industrial Commission, entered against him on October 22, 1925. The defendant the Industrial Commission will be referred to here as the Commission, and the defendant the Colorado Fuel & Iron Company as the Fuel Company.

The Commission answered the complaint, and the Fuel Company filed a demurrer thereto. On April 14, 1926, the Commission asked leave to withdraw its answer and join in the demurrer of the Fuel Company, which was granted. The demurrer was then heard and sustained, and, the plaintiff electing to stand by his complaint, judgment was entered for defendant. Plaintiff brings the case here for review. From the record it appears that plaintiff presented to the Commission his application for compensation on account of injuries alleged by him to have been sustained, in the course of his employment, while acting as switchman, coupling a yard engine to a car loaded with steel, and being at the time, as alleged, in the employ of the Colorado-Wyoming Railway Company and the Colorado Fuel & Iron Company.

On September 1, 1925, a hearing was had before a referee of the Commission as to the liability of the Fuel Company, the claim against the Colorado-Wyoming Railway Company having theretofore been dismissed, and findings and award entered by the referee against the plaintiff. Thereupon plaintiff petitioned the Commission for a review of the findings and award of the referee. The referee did not amend or modify the order, but referred the entire case to the Commission.

On October 22, 1925, the Commission made and entered a supplemental award, after having reviewed the entire record and prior proceedings, and denied plaintiff's claim for compensation. Plaintiff's complaint did not allege that a petition for review had been filed by plaintiff after the supplemental findings and award had been made by the Commission on October 22.

Plaintiff...