Johnson v. T.B. Stewart Construction Co., Civil 2916

• Decision Date: 21 November 1930
• Docket Number: Civil 2916
• Citation: 293 P. 20,37 Ariz. 250
• Parties: ALFRED O. JOHNSON, Petitioner, v. T. B. STEWART CONSTRUCTION COMPANY, Defendant-Employer; THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant-Insurance Carrier, Respondents
• Court: Arizona Supreme Court

293 P. 20

37 Ariz. 250

ALFRED O. JOHNSON, Petitioner, v. T. B. STEWART CONSTRUCTION COMPANY, Defendant-Employer;

THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant-Insurance Carrier, Respondents

Civil No. 2916

Supreme Court of Arizona

November 21, 1930

Original proceeding for Writ of Certiorari to set aside award of Industrial Commission. Award affirmed.

Mr George C. Crago and Mr. Will E. Ryan, for Petitioner.

Mr John J. Taheny, for Respondents.

OPINION

ROSS, J.

This proceeding by certiorari is brought to review an order and decision of the Industrial Commission refusing to allow Alfred O. Johnson compensation for an injury he claims to have sustained on May 15, 1929, in an accident arising out of and in the course of his employment by the T. B. Stewart Construction Company, insured with the state compensation fund.

The grounds set out in the petition for writ are: (1) That no hearing of claimant's demand for compensation was had before or by the commission; that no evidence was taken before the commission, or any member thereof, or its secretary, and that the commission's findings and decision were made without any evidence so taken, all of which appears upon the face of the record of the proceeding; and (2) that the findings and decision disallowing claimant's demand for compensation are not based upon any evidentiary facts, and are unwarranted; that, on the contrary, the evidence that claimant was accidentally injured in his ankle while at work for the company on May 15th is undisputed.

The claimant's assignments in his brief attack the commission's findings and decision upon the same grounds as those contained in the petition for review. The statute, section 1452, Revised Code of 1928, provides that "the review [in certiorari proceedings] shall be limited to determining whether or not the commission acted without or in excess of its power; and, if findings of fact were made, whether or not such findings of fact support the award under review. If necessary the court may review the evidence."

Bearing in mind this limitation upon our power, we will consider the claimant's contentions.

The certified record of the commission, filed in this court in response to the writ, contains a transcript of the testimony taken upon the hearings and during the investigation of claimant's demand. The transcripts, both on the original hearing and on the rehearing, show on their faces the hearings were had "before the Industrial Commission of Arizona . . . at the office of the Industrial Commission" at the capitol, John J. Taheny, referee. So, the first assignment is not sustained by the record.

But suppose, which probably is the fact, that the testimony was taken before Taheny as referee, with no member of the commission, or the commission, or its secretary, present, and that such procedure is not the one contemplated by the law, we think claimant is in no position to complain for the reason that the was present at both hearings, represented by counsel, participated in the hearings by submitting his testimony and by cross-examining the adverse witnesses, and made no objection whatever.

However, if it be conceded that all the testimony bearing upon claimant's demand for compensation was taken before a referee, we do not think the commission, in basing its findings thereon, acted without jurisdiction or in excess thereof. The Compensation Act does not undertaken to prescribed a procedure for the commission in the hearing of claims for compensation. The procedure is left largely to the discretion and judgment of the commission. The pertinent provision in that connection is section 1453, Revised Code of 1928, and reads:

"The commission shall not be bound by the rules of evidence, or by any technical or formal rules of procedure, other than as herein provided; but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out the spirit of this article."

The object is not to follow any particular procedure but the one which in the judgment of the commission is "best calculated to ascertain the substantial rights of the parties and to carry out the spirit of this article." When it is considered that every year the commission is presented with thousands of claims, it is at once evident that, in order to care for them all with dispatch, the commission must depute some of the work to others. The detail of taking and certifying the testimony to the commission for its consideration in determining the rights of the parties violates no statutory or constitutional right. We have held, as have other courts, that hearsay evidence is admissible in compensation cases. Ocean Accident & Guarantee Corp. v. Industrial Commission, 34 Ariz. 175 269 P. 77. Section 1402 of the Revised Code of 1928, a part of the Compensation Act, provides that the commission in the investigation of any employment or place of employment may appoint agents, who in the discharge of their duties shall have the powers of a referee appointed by a superior court with regard to the taking of testimony, but that such agents' recommendations shall be advisory only.

This last provision (section 1402) is in close juxtaposition to the provision (section 1400) which claimant asserts confers exclusive power upon the commission and its secretary "to take testimony and certify to official acts." It is true section 1400 confers that power upon the commission, the secretary thereof, and each commissioner, but it neither directly nor inferentially denies such powers to the commission's agents or referees as are conferred in section 1402.

It is alleged in the petition that no hearing of claimant's demand for compensation was had before or by the commission. This accusation, if true, would be serious, but it is not...