Industrial Com'n v. Martinez, 14233.
| Decision Date | 17 January 1938 |
| Docket Number | 14233. |
| Citation | 102 Colo. 31,77 P.2d 646 |
| Parties | INDUSTRIAL COMMISSION et al. v. MARTINEZ et al. |
| Court | Colorado Supreme Court |
Opinion Modified and Rehearing Denied March 7, 1938.
Error to District Court, Las Animas County; John L. East, Judge.
Proceeding under the Workmen's Compensation Act by Millie H Martinez, widow, claimant, in behalf of herself, Leo E Martinez and Cliseo Martinez, as minor sons, and Leola Martinez, as minor daughter, dependents, for the death of Leo Martinez, employee, opposed by the Bear Canon Coal Company employer. To review a judgment modifying an award of compensation to be paid from the State Compensation Insurance Fund, the Industrial Commission, the State Compensation Insurance Fund, and the employer bring error.
Reversed and remanded, with directions.
Byron G. Rogers, Atty. Gen., and Louis Schiff, Asst. Atty. Gen., for plaintiff in error Industrial Commission.
Harold Clark Thompson, of Denver, for plaintiff in error Insurance Fund.
Sam T. Taylor, of Walsenburg, for defendants in error.
This is a workmen's compensation case. The foregoing parties are referred to, in order, as the commission, the fund, the coal company, and the claimants; and Leo Martinez, formerly husband of Millie H. Martinez, as the deceased.
Deceased was employed by the coal company whose compensation insurance was carried by the fund. He met his death as the result of an accident arising out of and in the course of his employment. Claimants filed with the commission, whose referee found in their favor, basing his award on an average weekly wage of $19.11. On petition for review the commission itself fixed the same amount. Claimants took the cause to the district court, where the award was modified on the basis of an average weekly wage of $22.73. To review that judgment this writ is prosecuted. The total award of the commission was $2,985.94, which the district court increased to $3,545.67.
The judgment must be reversed because the district court never had jurisdiction.
'No action, proceeding or suit to set aside, vacate or amend any finding, order or award of the commission, or to enjoin the enforcement thereof, shall be brought unless the plaintiff shall have first applied to the commission for a review as herein provided.' Section 377, c. 97, '35 C.S.A.
The foregoing section is mandatory. French v. Industrial Commission, 85 Colo. 173, 274 P. 742.
This point was not raised below, but since it is jurisdictional that is immaterial. 3 C.J. p. 755, par. 652; Baker v. Denver Tramway Co., 72 Colo. 233, 210 P. 845, 29 A.L.R. 1453.
The only review here had, or sought, was a review of the award of the referee, not the commission. The very purpose of the statute is that errors or oversights may thus be brought to the attention of the commission itself, which has the sole power to make a final award. Counsel for claimants simply takes the position that 'a petition to the commission asking that it review the findings of the referee is all that is necessary' and cites no authorities. We are unable to agree with him. Carlson v. Industrial Commission, 79 Colo. 124, 244 P. 68; Passini v. Industrial Commission, 64 Colo. 349, 171 P. 369; Zuver v. Industrial Commission, 80 Colo. 429, 252 P. 361; Midget Consol. Gold Mining Co. v. Industrial Commission, 69 Colo. 218, 193 P. 493.
'It is clear that the district court could acquire no jurisdiction over the subjectmatter unless the fact appeared in the record that the petitioner had made application to the commission for a rehearing.' Stacks v. Industrial Commission, 65 Colo. 20, 23, 174 P. 588, 589.
The complaint must allege the filing of a petition for review provided by statute, otherwise the court acquires no jurisdiction and the point may be raised by demurrer. Brady v. Industrial Commission, 80 Colo. 62, 249 P. 6. Errors not specified in the petition for review can not be considered by the courts. London Guarantee & Accident Co., Ltd., v. Sauer, 92 Colo. 565, 22 P.2d 624. Hence, irrespective of allegations of complaint or answer, the petition must appear in the record.
No 'answer' of the commission, as that term is usually employed, is known to our court proceeding to review such an award. The statute provides that the commission shall 'make return to said court of all documents and papers on file in the matter, and of all testimony taken therein, and certified...
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