North Beck Mining Co. v. Industrial Commission of Utah

• Decision Date: 27 July 1921
• Docket Number: 3666
• Citation: 200 P. 111,58 Utah 486
• Court: Utah Supreme Court
• Parties: NORTH BECK MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

200 P. 111

58 Utah 486

NORTH BECK MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

No. 3666

Supreme Court of Utah

July 27, 1921

Proceedings under the Industrial Act by Arvid Erickson for compensation for injuries while employed by the North Beck Mining Company, employer, and others. Award for employee by the Industrial Commission of Utah and the employer and others bring certiorari.

AWARD AFFIRMED.

James H. Wolfe, of Salt Lake City, for plaintiffs.

Harvey Cluff, Atty. Gen., and John R. Robinson, Asst. Atty. Gen for defendant.

WEBER J. CORFMAN, C. J., and GIDEON, THURMAN, and FRICK, JJ concur.

OPINION

WEBER, J.

Arvid Erickson (who was made a party to these proceedings) was injured on November 21, 1920, while employed as a miner by the North Beck Mining Company, one of the plaintiffs. The injury resulted in the amputation of the first three fingers of the right hand at the proximal joint, and the removal of a chip from the head of the metacarpal bone of the index finger. The little finger was amputated at the junction of the second and third phalanges. The thumb was not injured, and is capable of junction with the palm of the hand and the stump of the little finger.

At the time of the accident Erickson was earning $ 42 per week. The Industrial Commission awarded him compensation for temporary total disability from the time of the injury until January 25, 1921, which allowance has been paid and is not now in dispute. The Commission further awarded compensation to Erickson at the rate of $ 16 per week for a period of 75 weeks, beginning January 26, 1921. A petition for rehearing was denied by the Commission. Within 30 days thereafter plaintiffs applied to this court for a writ of certiorari or review. The writ was served upon the Industrial Commission, directing it to certify its record in the case to this court. The statute was followed in all particulars, and the certified record was transmitted as required by the writ. No notice of any kind was served upon Arvid Erickson, to whom the award for compensation had been made, and no attempt was made by plaintiffs to make him a party to the proceedings here until after the expiration of the 30 days during which a party affected by an award of the Industrial Commission may apply to this court for a writ of certiorari. Erickson, by his counsel, now moves to dismiss these proceedings.

The Industrial Act of Utah (Comp. Laws 1917, §§ 3061-3165) is sui generis. The act provides inter alia that the Commission is not bound by the usual common-law or statutory rules of evidence, or by any technical or formal rules of procedure other than provided in the law itself; it may make investigations 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 the act. When an award is made to an applicant or claimant, and the employer or insurer applies to the Supreme Court for a writ of certiorari, the Attorney General appears for the Commission at the hearing, and defends the award and protects in every way within his power, the rights of the applicant to whom compensation was awarded. The workman who has been injured and applies for compensation is represented by the Commission, and is thus protected against the imposition of costs if the award be vacated, and without cost to him he is provided with competent counsel to defend and safeguard his interests. The statute makes no provision for service of any notice upon parties other than the Commission in cases where proceedings are instituted to review an award by writ of certiorari. When an appeal is taken from a judgment, the law provides that the notice of appeal must be served upon the adverse party. To give jurisdiction to the appellate court the notice of appeal, unless waived, must be served upon each necessary party to the appeal or upon his counsel. The Industrial Act has no such provision. From an award there is no appeal. The award can be attacked only by writ of certiorari and upon jurisdictional grounds, and if this, as contended for by counsel for defendant, should be considered as a substitute for an appeal, with this court limited as to the questions to be reviewed, it is still significant that the Industrial Act, as amended by Sess. Laws 1919, p. 165, provides that--

"The Commission and each party to the action or proceeding before the Commission shall have the right to appear in the review proceedings."

The Industrial Act, including the procedure therein provided, must be liberally construed, and with the purpose of effectuating its beneficent and humane objects. With that idea in mind, it seems clear that the legislative intent is that in certiorari proceedings where an award is complained of no party need be given notice of the review or certiorari except the Commission. If all parties are to be served with notice, why the statute that says that the Commission and each party to the proceedings shall have the right to appear in the review proceedings, and why did not the Legislature, in suitable language, say that a writ shall not issue unless all parties interested therein are given notice? Whether the applicant to whom compensation is awarded appears in the case or not, he and his rights are protected by the Commission who defends the award against the attacks made upon it.

It is maintained by counsel for defendant that the award is in the nature of a judgment. The Industrial Act provides that an abstract of an award may be filed in the office of the clerk of the district court in any county of the state and docketed in the judgment book, and that thereafter it constitutes a lien upon the real property of the employer situated in the county for a period of eight years from the date of the award, unless previously satisfied, and that an execution may issue thereon within the same time and in the same manner and with like effect as if the award were a judgment of the district court. Docketing the award for the purpose of making it a lien upon the real estate of the employer does not transmute the award into what is ordinarily denominated a judgment. The Commission can render no judgments because its powers are administrative only. It is simply an arm of the state, and is devoid of any judicial power. When a judgment of a court has been rendered and is not appealed from within the statutory time, it is thereafter not subject to attack, except by an action in equity. An award rendered by the Commission has no such elements of finality. On the contrary, the act provides 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 changes with respect to former findings or orders with respect thereto as in its opinion may be justified." Comp. Laws 1917, § 3144. In certiorari proceedings instituted for the purpose of reviewing those questions that are subject to review in connection with an award, service upon the Commission is all that is necessary. The applicant, Arvid Erickson, not being a necessary party to these proceedings, the act does not require service of notice of application for the writ upon him. The motion to dismiss is therefore denied.

The Commission, no doubt, has the power to require notice to be given to all the parties that may be interested in the certiorari proceedings, and it would be good practice to require such notice to be given. If that be done, each party may employ such counsel as he chooses, provided he is willing to pay their fees. Such notice is, however, not jurisdictional, and in no way affects the proceedings in this court.

The principal question here involved is as to the correctness of the award. This award was made on the basis of 50 per cent loss of the use of the right hand. The schedule in Comp. Laws Utah 1917, § 3138, as amended by Sess. Laws 1919, provides for loss of the first finger at proximal joint compensation for 20 weeks; for second finger at...