Utah Idaho Cent. R. Co v. Industrial Commission of Utah

• Decision Date: 06 September 1934
• Docket Number: 5507
• Citation: 35 P.2d 842,84 Utah 364
• Court: Utah Supreme Court
• Parties: UTAH IDAHO CENT. R. CO et al. v. INDUSTRIAL COMMISSION OF UTAH

35 P.2d 842

84 Utah 364

UTAH IDAHO CENT. R. CO et al. v. INDUSTRIAL COMMISSION OF UTAH

No. 5507

Supreme Court of Utah

September 6, 1934

Original proceeding by the Utah Idaho Central Railroad Company and others against the Industrial Commission of Utah to review an award of the Industrial Commission in favor of Ovid L. Pope.

AWARD AFFIRMED.

De Vine, Howell & Stine, of Ogden, for plaintiffs.

Joseph Chez, Atty. Gen., and Willard Hanson, of Salt Lake City, for defendants.

STRAUP Chief Justice. ELIAS HANSEN, FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur.

OPINION

STRAUP, Chief Justice.

Ovid L Pope, an employee of the Utah Idaho Central Railroad Company or the Utah Rapid Transit Company or both, in the course of his employment, on September 27, 1928, was injured while on a moving freight car coming in contact with a post or private mail box near the railroad track and thrown to the ground injuring his knee. The accident was reported to the Industrial Commission October 6, 1928, by the surgeon of both companies who examined Pope at the hospital on the morning of September 28 and reported that Pope, in the course of his employment, was injured by "hanging on car after cutting train and hit mail box and knocked to the ground," and that the injury consisted of "strain of the internal lateral ligament and dislocation of semilunar cartilage, left knee," and that the probable duration of temporary total disability would be several weeks. On October 10, 1928, the Utah Idaho Central Railroad Company also filed with the Industrial Commission a report of the accident, in which, among other things, it was stated that Pope in its train service was injured while "riding on the side of a coal car when he was scraped off with a private mail box erected 3' 2" from the rail, thus making an insufficient clearance," and that he was attended by its physician. The Utah Rapid Transit Company on February 7, 1929, likewise filed a report of the accident with the Commission.

In November, 1928, Pope brought an action in the district court of Weber county, Utah against the Utah Idaho Central Railroad Company to recover damages for the alleged injury. By his complaint it was alleged that the company was guilty of negligence in maintaining the post or mail box too near the railroad track, that at the time of the injury he and the company were engaged in interstate commerce, and based his right of recovery under the Federal Employers' Liability Act (45 USCA §§ 51-59). The company answered denying the alleged negligence, that Pope was in its employ, that he was injured while engaged in interstate commerce, averred that he was in the employ of the Utah Rapid Transit Company, that his injury occurred while engaged in intrastate commerce and was entitled to benefits under the Workmen's Compensation Act of Utah. The action came on for trial in May, 1929. After taking some evidence on behalf of the plaintiff and before the case was submitted by him, he dismissed the action without prejudice. A few days thereafter he commenced an action in the Federal District Court of Utah on alleged negligence against both companies to recover damages for the same alleged injuries, in which action he alleged he was in the employ of both companies, that at the time of the injury he and both companies were engaged in interstate commerce and again based his right of recovery under the Federal Employers' Liability Act (45 USCA §§ 51-59). Both companies answered denying the alleged negligence, that the injury occurred while Pope or either of the companies was engaged in interstate commerce, and averred that whatever injury sustained by him was while he and the companies were engaged in intrastate and not in interstate commerce; and that whatever compensation to which he was entitled was recoverable under the Workmen's Compensation Act of Utah (Comp. St. 1917, § 3061 et seq., as amended) and not otherwise. A trial on that action in the Federal District Court in January, 1930, resulted in a directed verdict against Pope and a dismissal of the action on the ground that his injury, if any, was sustained while he and the companies were engaged in intrastate and not in interstate commerce. On appeal by Pope that judgment was affirmed by the Circuit Court of Appeals, December 15, 1931. Pope v. Utah-Idaho Central Railroad Co. et al., 54 F.2d 575.

In the meantime Pope on September 4, 1929, and within one year from the alleged accident and injury and while the action in the Federal District court was pending and undetermined, filed an application with the Industrial Commission for compensation under the Workmen's Compensation Act. In addition to the usual averments in such case he by his application further averred that:

"A dispute has arisen as to whether the applicant at the time of the accident and injuries complained of was engaged in interstate commerce, and a suit is now pending in the District Court of the United States in and for the District of Utah to determine said issue. * * * This application is filed for the purpose of protecting all rights of the applicant herein under the Workmen's Compensation Act of the State of Utah, and in order that compensation may be paid to applicant in accordance with such act, but subject, however, to the final termination of that certain action now pending in the District Court of the United States in and for the District of Utah, wherein said applicant is plaintiff and the said Utah Idaho Central Railroad Company and Utah Rapid Transit Company are defendants, and wherein this plaintiff has filed a complaint setting forth the nature and character of the work in which he was engaged at the time of the accident and injuries complained of and claiming and asserting that at the time of receiving such injuries he was engaged in interstate commerce and that the rights, therefore, are to be determined under and pursuant to the Federal Employers' Liability Act of Congress and respectfully requests that a hearing upon this application be deferred until such time as said action shall have been terminated and respectfully petitions that if it shall be determined in said cause that applicant was not engaged in interstate commerce that he then be given and awarded compensation under and pursuant to the Workmen's Compensation Act of the State of Utah."

The companies filed an answer to such application admitting that Pope was injured by reason of an accident arising out of or in the course of his employment with the Utah Rapid Transit Company; that there was an action pending in the Federal District Court of Utah wherein it was alleged by Pope that at the time of his injury he was engaged in interstate commerce, which action at the time of the filling of the answer had been determined adversely to Pope but was still pending on a motion for a new trial. The companies further averred that neither had received notice of the filing of the application with the Industrial Commission, until about seven months thereafter and not until the termination of the action in the Federal District Court; that the Commission exceeded or lost jurisdiction by its failure to give earlier notice of the filing of the application, and because of such failure, the companies were prevented from pleading the filing of such application in defense of the action brought by Pope in the Federal District Court wherein he alleged that at the time of the accident and injury he was engaged in interstate commerce and hence was estopped from claiming that the accident or injury was occasioned while engaged in intrastate commerce.

Thereafter the application was set for hearing before the Industrial Commission of which notice was given, but it being made to appear that the action in the federal court was pending and undetermined in the Circuit Court of Appeals, the hearing on the application was held in abeyance until the termination of the cause in the Circuit Court. After such termination the application on further notice came on for hearing before the Commission, both companies appearing and objecting to the hearing upon grounds heretofore stated, which objection was overruled by the Commission. Evidence was thereupon adduced by both parties on the merits of the application. As a result of such hearing, in which all parties concerned participated, findings among others were made that Pope was an employee of the Utah Rapid Transit Company, that he was injured while engaged in intrastate commerce, that he suffered a temporary total disability for a period of about three and one-third months, and a permanent partial disability for 37 1/2 weeks to the left knee joint, a 25 per cent loss of function. The Commission thereupon made an award in a lump sum of $ 1,339.59 payable by the Utah Rapid Transit Company and its insurance carrier, the Great American Indemnity Company, also a party to the cause before the Commission.

A petition for a rehearing before the Commission was filed by both companies and by the insurance carrier which was denied. A writ of review was thereupon granted by this court upon a petition joined in by all of the parties defendants before the Commission. The main points urged by the petition are: (1) That the Commission was without jurisdiction to entertain the application, or had lost jurisdiction to hear the application for compensation on the ground that Pope requested the hearing on his application to be held in abeyance until the final disposition of the action in the federal court, failure of the Commission to give the companies reasonable or timely notice of the filing of the application for compensation and that neither company had notice of such filing until about seven months thereafter; (2) that the action brought by Pope in the Federal District Court...