Kindall v. McBirney

• Decision Date: 05 May 1932
• Docket Number: 5740
• Citation: 11 P.2d 370,52 Idaho 65
• Court: Idaho Supreme Court
• Parties: SERIPTA KINDALL, Respondent, v. W. S. MCBIRNEY, MCBIRNEY & STEWART, Doing Business Under the Firm Name and Style of MCBIRNEY FRUIT COMPANY, and MARYLAND CASUALTY COMPANY, Appellants

11 P.2d 370

52 Idaho 65

SERIPTA KINDALL, Respondent, v. W. S. MCBIRNEY, MCBIRNEY & STEWART, Doing Business Under the Firm Name and Style of MCBIRNEY FRUIT COMPANY, and MARYLAND CASUALTY COMPANY, Appellants

No. 5740

Supreme Court of Idaho

May 5, 1932

WORKMEN'S COMPENSATION ACT-FARM LABORER-ELECTION BY EMPLOYER-INDUSTRIAL ACCIDENT BOARD-JURISDICTION.

1. Statutory requirements to be performed to extend Workmen's Compensation Act to agricultural pursuits are mandatory (C. S., sec. 6216, as amended by Laws 1929, chap 88).

2. Employee, injured while engaged in agricultural pursuits before employer's election to have Compensation Act apply thereto was filed, held not within protection of act (C. S sec. 6216, as amended by Laws 1929, chap. 88).

3. Jurisdiction cannot be acquired by Industrial Accident Board by estoppel, agreement, waiver or conduct.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Appeal from judgment of district court reversing Industrial Accident Board denying award. Employer and surety appeal. Reversed.

Judgment reversed. Costs to appellants.

James F. Ailshie, Jr., and J. R. Smead, for Appellants.

Where prima facie, the employment does not come within the act, it is submitted that the burden rests with claimant to show that the particular case comes within the exception to the rule, that is, that prior to the accident the employer had filed an election in writing. (Paucher v. Enterprise Coal Min. Co., 182 Iowa 1084, 164 N.W. 1035.)

A tribunal otherwise without jurisdiction to hear and decide a given cause cannot be invested with such jurisdiction by one party's claim that the other is estopped to deny the jurisdiction. (Zurich Gen. Ins. Co. v. Industrial Acc. Com., 191 Cal. 770, 218 P. 563, 567.)

Clarence T. Ward, for Respondent.

Where the employer has made application for employer's liability insurance and such application was lodged with the insurer prior to the accident on express understanding that it would file the same with the Industrial Accident Board, the insurer is estopped to claim that the employer was not operating under the Workmen's Compensation Law because at the time of the accident he had not filed the application with the board as required by statute. (Ramey v. Broady, 209 Ky. 279, 272 S.W. 740; Junior Oil Co. v. Byrd, 204 Ky. 375, 264 S.W. 846; Allen v. American Milling Co., 209 Ill.App. 73.)

The Industrial Accident Board of this state is not a court but a legally constituted board of arbitration, with the matters for submission prescribed by statute. Hence the well-known principle of law that parties cannot be consent confer jurisdiction upon a court is clearly inapplicable. ( Ashland I. & M. Co. v. McDaniel, 202 Ky. 19, 258 S.W. 943; Junior Oil Co. v. Byrd, 204 Ky. 375, 264 S.W. 846.)

VARIAN, J. Lee, C. J., and Givens and Leeper, JJ., concur. Budge, J., dissents.

OPINION

VARIAN, J.

Respondent, a married woman aged 61 years, on October 14, 1929, while picking apples in an orchard belonging to appellant W. S. McBirney, fell from a ladder, sustaining injuries to her spine and right arm. She applied to the Industrial Accident Board for compensation, which was denied and the proceedings dismissed. On appeal the district court adopted the findings of the board but concluded therefrom that respondent was entitled to compensation in the sum of $ 1,486.19, and entered judgment against the employer and his surety, both of whom appeal. A single question is presented for determination. At the time of respondent's injuries was the orchard of W. S. McBirney being operated under our Workmen's Compensation Act?

Mr. McBirney operated several ranches and, in conjunction with other persons, operated a fruit packing plant under the name of McBirney Fruit Company. The crop of each member was packed by the McBirney Fruit Company, being delivered at the plant by the owner thereof. The Fruit Company did not buy the crops, or have any interest therein, but functioned simply to facilitate the packing of the fruit harvested by the owners thereof. On August 28, 1918, McBirney Fruit Company caused a bond, under the Workmen's Compensation Act, to be executed by Maryland Casualty Company, as surety, to cover liability under the act to employees of the Fruit Company. This bond was renewed each year by riders attached thereto, executed by the general agent for Maryland Casualty Company, at Boise, and on the twenty-eighth day of August, 1929, it was so renewed until August 28, 1930, the bond remaining on file with the Industrial Accident Board.

About the time of the last renewal Mr. McBirney entered into negotiations with the Maryland Casualty Company to extend the operation of this bond to cover liabilities under the Workmen's Compensation Act arising from the operation of the McBirney orchard in question here. The general agent for the Casualty Company then prepared an election, required by C. S., sec. 6216, as amended Sess. Laws 1921, chap. 220, p. 491, Sess. Laws 1927, chap. 106, p. 137, Sess. Laws 1929, chap. 88, p. 142, then in force (since amended Sess. Laws 1931, chap. 222, p. 435), to be filed with the Industrial Accident Board in order to bring exempted employments within the operation of the Workmen's Compensation Act. The election is dated September 1, 1929, signed by Mr. McBirney, and was filed with the Industrial Accident Board on October 28, 1929. The evidence is uncertain and unsatisfactory as to when the election was signed; whether before or after the accident on October 14, 1929. The board found that it was signed September 15, 1929, but there is hardly sufficient evidence to sustain this finding. It is clear, however, that the general agent of the Maryland Casualty Company mailed the signed election to the Industrial Accident Board on October 26, 1929, and that it was received and filed by the board on October 28, 1929.

After the accident Mr. McBirney's ranch foreman telephoned a physician at Boise and requested him to attend to respondent, stating: "She is covered by insurance so you don't need to worry about your bill." The same doctor testified that he was told, by a person in the office of the general agent of the Maryland Casualty Company in Boise, that respondent was covered by Maryland Casualty Company insurance and to go ahead. An operation on the wrist was necessary; also, her body was placed in a plaster cast for some time. The hospital bill and doctors' fees were subsequently paid by the Maryland Casualty Company.

Respondent contends that since the board found the election to come under the Workmen's Compensation Act was signed by Mr. McBirney on September 15, 1929, and was delivered by him to the agent of the Maryland Casualty Company to file, that was a substantial compliance with the statute and constituted an election thereunder in view of the previous arrangement to have the bond filed for McBirney Fruit Company also cover the McBirney orchard operations. The renewal of the bond for a year from August 28, 1929, the statements of the ranch foreman to the physician, and the statement made to him at the Maryland Casualty Company agent's office, together with the fact that the hospital bill and physicians' fees were paid by the Casualty Company, it is contended are sufficient to estop both the Casualty Company and Mr. McBirney from claiming that respondent's employment was not covered by the Workmen's Compensation Act.

It is conceded that respondent was injured while employed in an agricultural pursuit. C. S., sec. 6216, as amended Sess. Laws 1921, chap. 220, p. 491, Sess. Laws 1927, chap. 106, p. 137 Sess. Laws 1929, chap. 88, p. 142, then in force (since amended Sess. Laws 1931, chap. 222, p. 435), provided that none of the provisions of the chapter of our code relating to Workmen's Compensation should apply to "agricultural pursuits" (and certain other enumerated classes of employment) ". . . . Unless prior to the accident for which the claim is made, the employer had elected in writing filed with the board, that the provisions of the chapter shall apply." The language of the statute is clear, and unmistakably requires that before the provisions of the Workmen's Compensation Act shall apply to agricultural pursuits the employer's election in writing, to have it so apply must be...