State v. Nevada Industrial Commission

• Decision Date: 15 December 1916
• Docket Number: 2252.
• Citation: 161 P. 516,40 Nev. 220
• Parties: STATE EX REL. BROWN v. NEVADA INDUSTRIAL COMMISSION.
• Court: Nevada Supreme Court

161 P. 516

40 Nev. 220

STATE EX REL. BROWN v. NEVADA INDUSTRIAL COMMISSION.

No. 2252.

Supreme Court of Nevada

December 15, 1916

Original proceedings in mandamus by the State, on the relation of Ernest E. Brown, against the Nevada Industrial Commission. Demurrer to the petition sustained.

William Forman, of Tonopah, for petitioner.

W. W Griffin, of Carson City, for respondent.

NORCROSS C.J.

This is an original proceeding in mandamus. Paragraph 1 of the petition alleges the creation of respondent, Nevada Industrial Commission, under and by virtue of the provisions of section 8 of that certain act of the Legislature, entitled "An act relating to the compensation of injured workmen in the industries of this state and the compensation to their dependents where such injuries result in death, creating an Industrial Insurance Commission, providing for the creation and disbursement of funds for the compensation and care of workmen injured in the course of employment, and defining and regulating the liability of employers to their employés, and repealing all acts and parts of acts in conflict with this act," approved March 15, 1913 (Stats. 1913, p. 137), as amended March 22, 1915 (Stats. 1915, pp. 279, 282).

Paragraph 2 of said petition alleges that from the 6th day of July to the 24th day of September, 1915, inclusive, petitioner was employed by one M. E. McGhan as an engineer and millman in the operation of a quartz mill near the town of Round Mountain, in Nye county, and that during that time the relation of employer and employé existed between petitioner and said McGhan.

Paragraph 3 of said petition alleges that on the 24th day of September 1915, while petitioner was so employed, he was accidentally injured in the machinery of said mill, resulting in the loss of the first, second, and third fingers of his right hand.

Paragraph 4 of said petition alleges that as a result of said injury petitioner was totally disabled from performing any labor or service whatever for the period of 3 7/30 months, and suffered permanent partial disability as above mentioned that, under and by virtue of the provisions of the aforesaid act, petitioner is entitled to compensation from respondent in the sum of $1,454.

Paragraph 5 of said petition alleges that petitioner has complied with all the provisions of said act; that neither he nor his said employer have ever rejected the provisions of said act; that prior to said injury of petitioner, petitioner's said employer had never paid to respondent any amount whatever, as is required under the provisions of said act from employers not rejecting the terms of said act, nor had any demand ever been made of such employer for such payment by respondent; that respondent refused, and will continue to refuse, to pay petitioner said claim solely because petitioner's employer had not contributed to the state insurance fund provided for in said act.

Paragraph 6 of the petition alleges that it was and is the duty of respondent under and by virtue of said act to award and pay petitioner the amount of said claim.

Paragraph 7 of the petition alleges that petitioner has no plain, speedy, or adequate remedy at law.

To the petition a demurrer was filed, alleging:

"That said petition does not state a cause of action in favor of petitioner and against respondent, nor does it state facts sufficient to entitle the petitioner to the relief prayed for therein."

This proceeding was submitted upon the briefs filed. It was assumed by the briefs, both upon the part of petitioner and respondent, that mandamus was the proper remedy in this case. Upon reading the petition, the court was of the opinion that a serious question was presented as to what was petitioner's remedy upon the facts alleged, and an order was made vacating the submission and directing counsel to present the question as to whether mandamus was an appropriate remedy. Counsel for the respective parties have filed a joint brief, in which it is contended that this court should entertain the writ.

Section 38 of the act in question provides:

"The Nevada Industrial Commission is hereby authorized and empowered to prosecute, defend and maintain actions in the name of the Commission for the enforcement of the provisions of this act. * * *"

From the briefs filed upon the merits it would appear that the main, and possibly the only, controversy relative to the claim of petitioner, grows out of a difference of opinion as to the construction of section 37 of the act, which reads as follows:

"If any employer shall default in any payment to the accident fund hereinbefore in this act required, the sum due shall be collected by action at law in the name of the Nevada Industrial Commission as plaintiff, and such right of action shall be in addition to any other right of action or remedy. In respect to any injury happening to any of his workmen during the period of any default in the payment of any premium under section 6, the defaulting employer shall not, if such default be after demand for payment, be entitled to the benefits of this act, but shall be liable to suit by the injured workman (or the husband, wife, child or dependent of such workman in case death result from the accident) as he would have been prior to the passage of this act. In case the recovery actually collected in such suit shall equal or exceed the compensation to which the plaintiff therein would be entitled under this act, the plaintiff shall not be paid anything out of the accident fund; if the said amount shall

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