Provenzano v. Long

• Decision Date: 24 July 1947
• Docket Number: 3473.
• Citation: 183 P.2d 639,64 Nev. 412
• Parties: PROVENZANO v. LONG.
• Court: Nevada Supreme Court

183 P.2d 639

64 Nev. 412

PROVENZANO v. LONG.

No. 3473.

Supreme Court of Nevada

July 24, 1947

Appeal from District Court, Eighth District, Clark County; George E Marshall and Frank McNamee, Judges.

Action by Joe Long against Bernard V. Provenzano, doing business under the fictitious name of O. K. Plumbing & Heating Company, for injuries from being struck by a truck. From a judgment for plaintiff and from order denying defendant's motion for a new trial, defendant appeals.

Judgment and order affirmed.

Morse & Graves, of Las Vegas, for appellant.

Jones Wiener & Jones, of Las Vegas, for respondent.

BADT, Justice.

In a common law action for negligence tried to the court below without a jury, plaintiff Joe Long recovered a judgment against the defendant for $4,880. Defendant appeals from the judgment and from the order denying his motion for a new trial and relies mainly upon the contention, not made in the court below but raised here for the first time, that the district court had no jurisdiction to try the action, for the alleged reason that the Nevada Industrial Commission had exclusive jurisdiction to try and determine the matter. As the question raised is a jurisdictional one, it may be thus raised for the first time on appeal. Pershing Quicksilver Co. v. Thiers, 62 Nev. 382, 383, 152 P.2d 432. Although other questions are raised in the appeal, the determination of this point will be largely determinative of the appeal. Indeed, appellant says in his reply brief: 'This seems to be the pivotal element of this entire appeal.' Although our conclusions will require a more detailed statement of the facts involved, we may note generally that plaintiff brought his common law action in the district court after the State Industrial Commission had announced that the defendant was not covered by State Industrial Insurance, for the reason that he was in default in the filing of his pay rolls and the payment of his premiums.

The determination of such question required not only a finding of the facts under conflicting evidence, but the determination of numerous questions of both law and equity in connection therewith. Could a filing of pay rolls and payment of premiums after the accident and after the commencement of the action operate retroactively so as to make the industrial insurance effective as of the date of the accident? Could such subsequent payment, made with the specific written provision, that it should thus act retroatively, and the acceptance thereof under such terms by one of the employees of the Commission estop the Commission from questioning such result? Did the employee have the right to bind the Commission and subject it to an estoppel by such acceptance? Can the Industrial Commission in any event, as a governmental agency, be subjected to an estoppel? Did the Commission as a matter of law have a right to declare the defendant's account defaulted without formal demand for compliance? Was a tender of a refund on the part of the Commission of the premiums thus paid by the defendant in an attempt to reinstate his account retroactively essential before such account could be in default? Was it a fraud upon the defendant for the Commission to accept the said subsequent premium payment, through one of its employees, and then, through its auditor, to declare that such acceptance had no such effect? These and other questions all required determination, and it is insisted by appellant that under our Industrial Insurance Act the determination was within the exclusive jurisdiction of the Industrial Insurance Commission. The controversy arose out of the following situation:

Plaintiff an employee of defendant, was struck by defendant's truck driven by another of defendant's employees, on premises owned and operated by the defendant, on September 13, 1945. Plaintiff had just quit work for the day, stepped out of the defendant's building and while still in front of the door, on the premises, waiting for his wife to call for him, the defendant's truck drove up, was unable to stop on account of defective brakes, and pinned the plaintiff against the building, breaking his leg and otherwise injuring him. The accident was reported to the Industrial Insurance Commission, which concluded that the defendant was not covered.

On August 2, 1945 the defendant had filed its pay rolls for the period ending June 30, 1945, and paid the premiums for same. Defendant's next pay rolls were submitted September 28, 1945, some fifteen days after the accident, and the next pay roll report was made and premium paid October 2, 1945 for the period ending August 29, 1945. The pay roll report and premium payment for September, 1945, the month in which the accident occurred, were submitted February 5, 1946, almost five months after the accident and seven days after the filing of the complaint in this action in the district court. It was accompained by letter enclosing check for $864.53 in payment of the premiums in accordance with the pay rolls submitted, and 'with the express understanding that it be considered a retroactive payment covering the reports enclosed herewith and that any benefits which would have inured to us during the effective dates, if our reports had been sent in on time, will still be in effect.' The check was cashed, and no tender of refund ever made. The insurance account was originally opened in February, 1945, at which time deposit had been made of insurance premium, on an estimated sixty-day pay roll. On the date of the accident, September 13, 1945, defendant had on deposit with the Commission $413. This would have been sufficient to place him in good standing if he had reported his pay rolls in accordance with the requirements of the Commission and in accordance with the state statute. As above noted, he had failed to do this.

The statute in question comprises §§ 2680 to 2731, N.C.L., as amended. Section 2702 provides, among other things, as follows:

'Every employer electing to be governed by the provisions of the act shall, on or before the twenty-fifth day of each month, furnish the Nevada industrial commission with a true and accurate pay-roll showing the aggregate number of shifts worked during the preceding months, the total amount paid to employees for services performed during said month, and a segregation of employment in accordance with the requirements of the commission, together with the premium due thereon * * *. Failure on the part of any such employer to comply with the foregoing provisions shall operate as a rejection of this act, effective at the expiration of the period covered by his estimate * * *.'

On each form for the filing of the employer's pay roll was printed the following rule:

'Pay rolls must be submitted on or before the 25th of each month covering operations for the previous month. Failure on the part of employer to pay premiums as required by the Nevada Industrial Insurance statute acts as an automatic rejection.'

One of the rules promulgated by the Commission, under authority of § 2693, N.C.L., and § 2702, quoted supra, reads as follows:

'Failure to maintain an advance deposit, or to submit pay rolls, as above provided, acts an an automatic rejection of the act, and any credit remaining may be considered as earned premium for the unreported period. We send no further notice, and it is your duty to avoid a rejection of our act by following above instructions.'

Such rule was printed on the monthly statements mailed by the Commission to defendant.

A Mr. Newell, in the employ of the Nevada Industrial Commission, had accepted the late filings and payment (occurring after the accident) under the terms of the forwarding letter insisting upon the retroactive effect of the filing. Mr. Lee, auditor for the Commission, subsequently rejected the theory that such retroactive effect could have been accomplished. Mr. Lee was examined and cross-examined, and also examined by the court, and the questions as to the various filings and premium payments by the defendant were asked and answered many times, the answers being at the best somewhat confusing and in several respects apparently conflicting. Honorable George E. Marshall, district judge who tried the case, held 'that there is ample evidence in the record to sustain plaintiff's theory that, by failure to comply with the rules and regulations of the statutes of the State of Nevada relating to Workmen's Compensation, the defendant had failed to comply with the terms and conditions of the Industrial Insurance Act and, therefore, by such action, had rejected the act at the time of the accident complained of by the plaintiff.'

Honorable Frank McNamee, district judge who heard the defendant's motion for new trial, stated, in denying such motion:

'The Court has carefully read the transcript of the testimony of the witness Henry H. Lee as well as the documentary evidence in the file, which leads to but one conclusion, to wit, that the said defendant was not entitled to the benefits of the Nevada Industrial Insurance Act on the date of said injuries.'

The foregoing will be sufficient for a consideration of the appellant's contention that the entire controversy including the question as to whether or not defendant had industrial insurance coverage at the time of the accident, lay within the exclusive jurisdiction of the Industrial Insurance Commission. In support of this contention, appellant relies almost entirely upon the case of Employers' Liability Assur. Corporation v. Matlock, 151 Kan. 293, 98 P.2d 456, 127 A.L.R. 461, Annotation 473, and the Kansas, New York and California cases therein cited. In the Matlock case the Employers' Liability Assurance Corporation, Limited, commenced an action against the injured workman who was...