Utah Consol. Mining Co. v. Industrial Commission of Utah

• Decision Date: 15 December 1920
• Docket Number: 3531
• Citation: 194 P. 657,57 Utah 279
• Court: Utah Supreme Court
• Parties: UTAH CONSOL. MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

194 P. 657

57 Utah 279

UTAH CONSOL. MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

No. 3531

Supreme Court of Utah

December 15, 1920

Proceedings under the Industrial Act to recover compensation for the death of Gaetano Parone, employer, opposed by the Utah Consolidated Mining Company, employer, and the Bankers Trust Company, as receiver for the Guardian Casualty &amp Guaranty Company. An award was made to Fortunata Parone decedent's widow, a rehearing was denied, and the employer and the receiver bring writ of review.

AWARD VACATED and commission directed to deny petition for compensation.

Van Cott, Riter & Farnsworth, of Salt Lake City, for plaintiffs.

Dan B Shields, Atty. Gen., and Olson & Lewis, of Salt Lake City, for defendant.

THURMAN, J. CORFMAN, C. J., and FRICK and GIDEON, JJ., concur. WEBER, J., being disqualified, did not participate.

OPINION

THURMAN, J.

On July 15, 1917, one Gaetano Parone, while in the employ of the plaintiff mining company, was killed in an accident arising out of and in the course of his employment. The mining company was within the provisions of the Utah Industrial Act (Comp. Laws 1917, tit. 49, as amended by Laws 1919, c. 63), and was insured by the Guardian Casuality & Guaranty Company. This company has since been succeeded by the Bankers' Trust Company, plaintiff herein.

The deceased, Parone, was an Italian. His dependents, if any he had, resided in Italy. No steps of any kind were taken to recover compensation for his death until October, 1918. At that time proceedings were commenced before the Industrial Commission (hereinafter called commission), and various steps taken from time to time until July 30, 1920, when the commission made an award in the sum of $ 4,500 to one Fortunate Parone, as widow of the deceased.

Plaintiffs in this action applied to the commission for a rehearing, which application was denied. The case comes before us on a writ of review, and it is contended by plaintiffs in their application that the commission exceeded its jurisdiction in making the award.

Various and numerous objections are urged by plaintiffs, and the same appear to have been seasonably made in the proceedings before the commission.

The principal objection made by plaintiffs, and one which is controlling if their contention is correct, is that the action, if action it may be called, for compensation, was not commenced in time. At the very threshold of the proceeding before the commission, plaintiffs herein interposed a plea of the statute of limitations.

It is conceded by both parties that the Utah Industrial Act itself fixes no limitation within which a proceeding for compensation may be commenced. The general statute, however, contains the following provision upon which plaintiffs rely (Comp. Laws Utah 1917, § 6468):

"An action for liability created by the statute of a foreign state or by the statute of this state other than a penalty or forfeiture under the laws of this state shall be begun within one year."

There can be no denial of the fact that the Utah Industrial Act created a liability that had no existence prior to the enactment of the law. But it is contended by the commission that a proceeding before it to recover compensation for an injury under the Industrial Act is not an "action" within the meaning of the statute above quoted.

It is practically conceded by both parties to the litigation that the question under review is one of first impression. It is unquestionably so, so far as this jurisdiction is concerned. Nor has our attention been called to any decision from the court of a sister state or other jurisdiction that sheds light upon the question here presented. As bearing upon the meaning of the word "action" as used in the statute quoted, plaintiffs rely on Comp. Laws Utah 1917, § 6492, which is a part of the general statute of limitations. The section reads:

"The word 'action' as used in this chapter, is to be construed, whenever it is necessary to do so, as including a special proceeding of a civil nature."

It is contended by plaintiffs that a proceeding before the commission for compensation under the Industrial Act is, atleast, "a special proceeding of a civil nature," and therefore within the meaning of the statute of limitations. There is much force in this contention. The Utah statute of limitations is broad and comprehensive. It seems as if the Legislature intended that, wherever a remedy was provided for a wrong or recovery on a liability, there should be a limitation of time within which the party injured could resort to the remedy. We can conceive of no reason why there should not be a limit of time within which a proceeding for compensation under the Industrial Act should be commenced, as well as in actions and proceedings outside of the act. Every possible reason that calls for a limitation of time in the one case applies with equal force to the other. For this reason we are inclined to the view that in passing the Industrial Act the Legislature intended that the general statute of limitations should apply.

Counsel for the commission cite the case of Baur v Common Pleas of Essex, 88 N.J.L. 128, 95 A. 627. This case lends no...