Carter v. Industrial Commission

• Decision Date: 05 August 1930
• Docket Number: 5019
• Citation: 290 P. 776,76 Utah 520
• Court: Utah Supreme Court
• Parties: CARTER v. INDUSTRIAL COMMISSION

290 P. 776

76 Utah 520

CARTER v. INDUSTRIAL COMMISSION

No. 5019

Supreme Court of Utah

August 5, 1930

Original application for mandamus by J. S. Carter against the Industrial Commission of Utah to require the commission to hear a cause alleged to be pending before it and which it refuses to hear.

WRIT MADE PERMANENT.

Willard Hanson, of Salt Lake City, for plaintiff.

Geo. P Parker, Atty. Gen., and Bagley, Judd & Ray, of Salt Lake City, for defendant.

STRAUP J. ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur. CHERRY, C. J., concurs in the result.

OPINION

STRAUP, J.

This is an application for a writ of mandamus to require the Industrial Commission to hear a cause alleged to be pending before it and which it refuses to hear. In the petition for the writ it in substance is alleged that Carter, the petitioner, on May 13, 1928, and prior thereto in Wasatch county was in the employ of the Cedar Construction Company whose insurance liability under the industrial act was carried by the state and payable out of the state insurance fund managed and controlled by the Industrial Commision. On the day stated and while in the employ of the construction company and in the course of his employment, Carter received an injury to his eyes which, as he alleged, resulted in almost total blindness. The accident and injury were reported and medical and surgical aid furnished him.

On August 2, 1928, he, as in such case by the industrial act made and provided, applied to the commission for compensation on account of the injury. A partial hearing was had on May 4, 1929, and the further hearing postponed to August 5, 1929, when further and additional evidence was adduced. On September 18, 1929, the commission made an order denying the applicant compensation. It found that while the applicant in the course of his employment was feeding a mixture of alfalfa and timothy hay to horses, a gust of wind blew a mixture of hay and dust in his eyes and that others assisted him in an attempt to remove the particles from his eyes; that he continued with his work until June 16, 1928, when he consulted and was examined by two eye specialists and was treated for an acute inflammation of his eyes. The commissioner further found that "symptoms peculiar to the existence of an exopthalmic goiter or a tumor at the base of the brain manifested themselves at an early date subsequent to May 13, 1928. The applicant's condition grew worse and medical aid was procured in Salt Lake City with a long period of treatment including a thyroidectomy," and notwithstanding "the applicant had been examined and treated by fourteen different physicians and surgeons, his condition grew worse until the time of the last hearing when he was found to be almost totally blind." It further found that none of the "eye specialists" was of the opinion that the applicant's disability was the result of the accident complained of. No finding was made that the applicant prior to the alleged accident had any ailment or affliction of any kind or had any trouble with his eyes or sight. The symptoms, so learnedly in medical and surgical lore characterized by the commission, were found to have manifested themselves after the alleged accident.

On November 4, 1929, the applicant in due time filed with the commission a petition for a rehearing. The rehearing was granted and a further hearing had on November 25, 1929, when the matter was taken under advisement. On February 4, 1930, the commission reaffirmed its prior order denying compensation. Within twenty days thereafter, and on February 24, 1930, when additional or other counsel were procured by the applicant, another application "for a further hearing and reopening of said case and a reconsideration of the same, together with affidavits showing that the petitioner was entitled to compensation and that the condition of his eyes was due wholly and solely to the alleged accident and injury occurring in May, 1928," were filed with the commission. The commission, in granting a further hearing or rehearing, over the objection of the construction company and of the state insurance fund (administered and controlled by the commission), stated that it was doubtful whether it had authority to grant the application, "but in view of the nature of the evidence alleged to exist in said petition for rehearing and which has not heretofore been presented and which it is alleged will be produced if an opportunity is given so to do, it is willing, if possible to the end that all parties concerned may present any further pertinent and competent evidence in this case, if given opportunity to do so, to give such opportunity, provided it has power and jurisdiction so to do, but as to which power it has doubt by reason of a construction placed upon the Industrial Act by the Supreme Court of the State of Utah, which appears to limit the powers of the Commission relative to its taking further testimony and having further rehearings, after one rehearing has already been had and acted upon, upon petition of the same applicant or any other applicant" and "in view of the foregoing and in the interest of meeting out even justice to all parties concerned," and of "the circumstances existing in this case," the commission, on March 6, 1930, granted the application for a rehearing of the cause. At that time, had the commission denied the application for a rehearing, the applicant still was within time, under the provisions of Comp. Laws Utah 1917, § 3061, et seq., as amended by Session Laws Utah 1919, c. 63, to apply to this court for a writ of review to review the whole of the proceedings denying compensation on the original hearing and one the first rehearing of the cause.

After the second rehearing or further hearing on March 6, 1930, was granted, the applicant on March 22, 1930, filed a written request with the commission that it fix a time and place for such further hearing, but the commission, on March 26, 1930 (and after the time had expired in which under the statute the applicant could have applied to this court for a review of any of the proceedings had in the cause), refused to fix any time or to hear any further evidence or proceedings, on the stated ground that it was without jurisdiction to grant the second petition for a rehearing or further hearing, and thus its order, made on March 6, 1930, granting the rehearing or further hearing, was unauthorized and void. Hence, the petitioner applied to this court for a writ of mandate to require the commission to fix a time and place to further hear the cause in accordance with its order made on March 6, 1930.

The facts alleged in the petition and as heretofore stated are not controverted. The commission firstly urges that if it had jurisdiction to grant the second rehearing, it was within its discretion to grant or not grant it and thereafter to revoke whatever order was made by it in such respect likewise was within its discretion, that a remedy by appeal or review was available the applicant to have reviewed the order made on the first rehearing denying compensation, and hence mandamus will not lie; and secondly the commission urges that it was without jurisdiction to entertain or grant an application for a second rehearing, and thus its order granting it was void, and hence the commission was justified in refusing to fix a time or to entertain any further proceedings in the cause.

We think the determining factor involves the question of whether the applicant had the legal right to apply for a further hearing, whether it be called an application for a second rehearing or for a further or another hearing, and the power or authority of the commission to entertain the application. If the applicant had such right, and if properly pursued by him, his time in which to seek a review would not begin to run until after a determination of his application or motion for a further or another hearing. In such respect the filing of an application or motion for a rehearing is analogous to the filing of a motion for a new trial under the Code of Civil Procedure. If none is filed, the time for an appeal runs from the entry of the judgment. If one is filed, the time does not begin to run until the motion is disposed of, for until then the judgment is not final.

The only provisions of the industrial act relating to the subject are section 3148--a, Comp. Laws Utah 1917, as added by chapter 63, Session Laws 1919, that, "within thirty days after application for a rehearing is denied, or, if the application is granted, within thirty days after the rendition of the decision on the rehearing, any party affected thereby may apply to the Supreme Court of this State for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the lawfulness of the original award or the award on rehearing inquired into and determined"; and section 3144, Comp. Laws Utah 1917, that, "the powers and jurisdiction of the commission over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto as in its opinion may be justified."

No other provision is made by the statute with respect to an application or a motion for a rehearing or within what time such an application or motion is required to be made. Section 3148--a and 3144 were considered by this court in the case of Salt Lake City v. Industrial Commission, 61 Utah 514, 215 P. 1047. There the employee filed an application for compensation in May, 1922. A hearing on merits was had before the commission, and on June 17 1922, compensation was awarded. The employer, Salt Lake City, on August 1, 1922, filed an application for a rehearing which on the same day...