Industrial Com'n v. Plains Utility Co.
| Decision Date | 25 May 1953 |
| Docket Number | No. 16979,16979 |
| Citation | 127 Colo. 506,259 P.2d 282 |
| Parties | INDUSTRIAL COMMISSION et al. v. PLAINS UTILITY CO., Inc. et al. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Dep. Atty. Gen., and Peter L. Dye, Asst. Atty. Gen., for plaintiff in error Industrial Commission.
Duane O. Littell, Denver, for defendants in error.
This is a workmen's compensation case brought here by writ of error to review a judgment of the district court of the City and County of Denver which set aside an award of the Industrial Commission of the State of Colorado.
The facts giving rise to this litigation, as disclosed by the record, briefly are: Neola Kitzmiller is the widow and only dependent of one Fred Clayton Kitzmiller who was 'electrocuted' on November 24, 1951, in an accident arising out of and in the course of his employment by the Plains Utility Company, incorporated. The United States Fidelity and Guaranty Company was the Utility Company's insurer.
We shall hereinafter refer to the Industrial Commission of Colorado as the Commission; to Neola Kitzmiller as widow; to Plains Utility Company, incorporated, by name or as employer; to United States Fidelity and Guaranty Company as insurer.
Kitzmiller was employed by the United States Postal Service as a mail carrier on two Star Routes and received for these services the sum of $275 per month. In addition to his employment by the Postal Service he was employed by the Plains Company for some services at a compensation of $30 per month, and it was during this latter employment that he accidently was killed.
The employer filed a report of the accident. The insurer admitted its liability for compensation to the widow in the sum of $3,130 payable at the rate of $43.47 per month, and a liability of $150 for the expense of burial. After the claim for compensation was filed by the widow, and on March 28, 1952, there was filed with the Commission a stipulation and agreement, executed by claimant's attorney and by the insurer, in which it was agreed that the wage to be used in determining the compensation benefits due the widow was $30 a month and that the earnings received by the deceased under his contract with the United States Postal Service should not be considered in the computation. On April 28, 1952, at a hearing before a referee of the Commission, he found that compensation should be paid the widow based upon the aggregate earnings of the deceased amounting to $3,660 per year, and it was ordered by the referee that compensation should be paid to the widow at the rate of $121.72 per month and continued monthly thereafter at that rate until the sum of $8,764 was paid and also ordered the payment of $150 on account of funeral expenses. On May 12, 1952, the employer and its insurer filed a petition for review by the Commission of the referee's order. Thereafter and on May 13, 1952, the referee referred the matter to the Commission for its determination. The Commission, on May 29, 1952, made its findings of fact and award approving in all respects the referee's order of May 6, 1952, and copies thereof were duly mailed to the employer and insurer. On June 18, 1952, the employer and insurer filed a petition for review, and specifically called attention to the order and award of the Commission dated May 6, 1952. On June 27, 1952, the Commission in a supplemental award, reviewed its award of May 29, 1952, and affirmed and approved the same as the 'Final Award of this Commission.' Thereafter on July 16, 1952, complaint to set aside and vacate the award of the Commission was filed in the district court.
It should be noted that the petition for review of the Commission's order and award, which was, in fact, denied by its findings of fact and award on May 29, 1952, was not filed with the Commission until June 18, 1952, which was twenty days after the Commission's findings of fact and award. Counsel for the Commission take the position here--and this is presented for the first time--that the district court had no jurisdiction to act in this cause because the petition for review was not filed within the time provided by statute. The applicable statutory provision reads:
(Italics ours.) Section 376, chapter 97, '35 C.S.A.
The other section pertaining to the jurisdictional question presented by the Commission is:
(Italics ours.) Section 377, chapter 97, '35 C.S.A.
It is the Commission's position that the petition for review, provided by said section 376, is mandatory and must be filed within the time therein provided or the findings and award of the Commission becomes final, and thereafter any attempt to set them aside, vacate or amend them is futile and beyond the jurisdiction of the courts. The employer and insurer take the position that conceding their failure to file a timely petition for review of the Commission's findings of fact and award, under the factual situation here presented, there is no bar to a judicial review and determination of the interests involved, and this because no objection whatever has been made heretofore to the belated filing of the petition for review, and the Commission is now estopped to question the jurisdiction of the courts.
It should be noted that in 1915 the legislature enacted our first Workmen's Compensation law, Chapter 179, 1915 Session Laws of Colorado, which act was amended in 1917, Chapter 155, 1917 Session Laws of Colorado. In 1919 practically a new Workmen's Compensation Act was passed, Chapter 210, 1919 Session Laws of Colorado, and all provisions of Chapters 179 and 155, supra, inconsistent with the 1919 act, were repealed. Section 97 of the 1919 amendatory act contains, for all general purposes, the same provisions as section 376, supra. The principal change in the 1931 amendment, section 376, chapter 97, '35 C.S.A., to said section 97, supra, affords a plaintiff fifteen days within which to file a petition for review rather than the ten days provided in said section 97, supra, of the 1919 amendatory act. Section 377, supra, was enacted as section 98, chapter 210, 1919 Session Laws of Colorado, and is currently in force.
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