Woldberg v. Industrial Commission of Utah

• Citation: 74 Utah 309,279 P. 609
• Decision Date: 24 June 1929
• Docket Number: 4751
• Court: Utah Supreme Court
• Parties: WOLDBERG v. INDUSTRIAL COMMISSION OF UTAH et al

279 P. 609

74 Utah 309

WOLDBERG v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4751

Supreme Court of Utah

June 24, 1929

Original proceeding in certiorari to review an award of the Industrial Commission of Utah denying compensation to Walter A. Woldberg, opposed by the Industrial Commission, the Utah Woolen Mills, employer, and the State Insurance Fund.

DISMISSED.

Clawson & Elsmore, of Salt Lake City, for plaintiff.

E. A Walton, of Salt Lake City, for defendant Woolen Mills.

George P. Parker, Atty. Gen., M. Logan Rich, Asst. Atty. Gen., and Bagley, Judd & Ray, of Salt Lake City, for other defendants.

FOLLAND J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur.

OPINION

Folland, J.

This is a proceeding in certiorari to review an award of the Industrial Commission denying compensation to the applicant, Walter A. Woldberg. The facts were stipulated before the commission. They tend to show that there would be liability on the part of the employer if the applicant, who is a boy 12 years of age, were legally employed at the time of the happening of the accident. The commission made findings of fact and conclusions of law wherein it was found and concluded that, under the Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165, as amended) and the so-called Child - Labor Law (Comp. Laws Utah 1917, §§ 1860-1874), the commission is without power or authority to award compensation to the minor either against his employer or the latter's insurance carrier. It was therefore ordered that compensation be denied. Motion for rehearing was made and denied.

The defendants Utah Woolen Mills and State Insurance Fund filed a motion to dismiss the writ on the ground that this court is without jurisdiction to hear and determine the cause, for the reason the application for this writ was filed too late and not within the time fixed by statute.

The record discloses that applicant's petition for rehearing was denied by the commission on May 14, 1928, notice of which was served on the parties, including applicant's guardian and his attorneys. Petition for a writ of review was filed in this court on June 15, 1928, or two days after the expiration of the 30-day period provided in Comp. Laws Utah 1917, § 3148, as amended by chapter 67, Laws Utah 1921, p. 181. The argument in this court was addressed to this motion. The case was not presented on the merits.

This court has repeatedly held that it has no jurisdiction to entertain or consider a petition to review a decision of the Industrial Commission which is not filed within 30 days after denial by the commission of a petition for rehearing. Salt Lake City v. Industrial Commission, 61 Utah 514, 215 P. 1047; State Insurance Fund v. Industrial Commission, 61 Utah 579, 217 P. 249; Ferguson v. Industrial Commission, 63 Utah 112, 221 P. 1099; Heledakis v. Industrial Commission, 66 Utah 608, 245 P. 334; Utah Fuel Co. v. Industrial Commission (Utah) 273 P. 306; Thompson v. Industrial Commission (Utah) 273 P. 311. The writ must be dismissed unless there is something in the instant case which takes it out of the rule announced above.

Counsel for the applicant point out that the State Insurance Fund is not a legal entity and cannot be a party to an action. Ban & Kariya v. Industrial Commission, 67 Utah 301, 247 P. 490. Applicant, however, is responsible for the alignment of the parties defendant in this proceeding. Applicant procured and filed an affidavit and a disclaimer of the other movant, Utah Woolen Mills, wherein that defendant states that it does not now question the jurisdiction of this court, and withdraws, as far as it can, its motion to dismiss the writ. We need not discuss or decide the legal effect of these matters, for the reason that this court will inquire into its own jurisdiction however that question may be called to its attention. "We have no right to proceed to a decision of the merits of any case where the law forbids us the right to do so whether the parties desire it or not." McCashland v. Keogh, 32 Utah 11, 88 P. 680.

It is urged that the opinion in the case of Utah Fuel Co. v. Industrial Commission, supra, decided in January, 1929, is fundamentally wrong and should be overruled. It is sufficient answer to say that the cases cited and arguments now made were fully presented to the court on motion for rehearing in the Utah Fuel Co. Case, supra, and, after a thorough consideration, the court held it was bound by the Heledakis Case, supra. We see no reason at this time to reverse or change the rule which has been in effect for so many years and sustained by this court in six decisions. It was held in the Heledakis Case that the statute prescribing the time within which an application may be made to this court for review is analogous to the statute relating to the time within which to appeal. After the decision of the Utah Fuel Company Case, the same rule was reaffirmed and followed in Thompson v. Industrial Commission, supra.

The applicant, however, seeks to distinguish the instant case from the cases heretofore cited, by saying that in those cases the commission was "deciding between two adversaries with neither of which it had any privity, whereas in the case at bar the real controversy is between applicant on one side and the Industrial Commission on the other, not strictly as a judicial tribunal but as a mere administrator of the State Insurance Fund." No such distinction is contemplated by the statute. The same procedure is specified in all cases, irrespective of who or what the employer may be and whether compensation is assured by an insurance company, the State Insurance Fund, or the employer as a self-insurer. This court has heretofor stated that no distinction can be made between the different kinds of employers and insurance carriers, but that all must be treated alike. Industrial Commission v. Evans, 52 Utah 394, 174 P. 825. The commission has been considered as an administrative body but clothed with authority to make awards against a self-insurer as well as the State Insurance Fund and other insurance carriers. It was the intent of the Legislature to provide a means to secure...