Zimmerman v. Industrial Com'n, 15039.

• Decision Date: 08 December 1941
• Docket Number: 15039.
• Citation: 108 Colo. 552,120 P.2d 636
• Parties: ZIMMERMAN v. INDUSTRIAL COMMISSION et al.
• Court: Colorado Supreme Court

120 P.2d 636

108 Colo. 552

ZIMMERMAN v. INDUSTRIAL COMMISSION et al.

No. 15039.

Supreme Court of Colorado, En Banc.

December 8, 1941

Order to Remand Modified and Rehearing Denied Jan. 5, 1942.

Error to District Court, Routt County; Charles E. Herrick, Judge.

Proceeding under the Workmen's Compensation Act by Frank Brack claimant, opposed by E. H. Zimmerman. E. H. Zimmerman having died, Mrs. E. H. Zimmerman, as administratrix of the estate of E. H. Zimmerman, deceased, was substituted as a party to the proceeding. To review a judgment affirming an award of the Industrial Commission of the State of Colorado, Mrs. E H. Zimmerman, as administratrix, brings error.

Judgment reversed and cause remanded, with directions.

Addison M. Gooding, of Steamboat Springs, for plaintiff in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and Henry L. Stark, Asst. Atty. Gen., for defendant in error, Industrial Commission.

William R. Arthur, Jr., and William O. DeSouchet, both of Boulder, for defendant in error, Frank Brack.

OTTO BOCK, Justice.

In this proceeding under the Workmen's Compensation Act, claimant Brack was awarded compensation in the sum of $6,095 for personal injuries resulting from an accident arising out of and in the course of his employment as foreman of the Block Coal Company. It appears from the record that one E. H Zimmerman was the lessor of the property operated by the coal company, and as such the referee of the Industrial Commission held him to be an employer and he was included as such in the findings and award. Mr. Zimmerman having died, his widow, as administratrix of his estate, was substituted as a party to the proceeding and she is the plaintiff in error here.

After rather extensive interlocutory proceedings, the referee, May 16, 1941, entered a final order reinstating and confirming the original award. Subsequently, plaintiff in error filed a petition for a review of this award, and upon the hearing thereof the orders of the referee were affirmed and adopted as the award of the commission. No petition for a review of this award of the commission was presented or filed. This had the effect of making the award final and leaving the court without jurisdiction to determine the controversy.

Industrial Commission v. Martinez, 102 Colo. 31, 77 P.2d 646. The failure to file a petition to review the commission's award was alleged in a motion to dismiss the complaint, which was sustained. Plaintiff in error here urges that she did not receive due and sufficient notice of the award of the commission, and therefore the time within which to file a petition for review had not commenced to run. Industrial Commission v. Martinez, supra. We think this contention has merit. The record contains a carbon copy of a document denominated 'Findings of Fact and Award,' which purports to have been duly executed on the 11th day of July A. D. 1941. To this writing is attached an affidavit of service by mail which recites that affiant served 'the attached findings of fact and award of July 11, 1941' by mailing copies thereof to designated parties, including plaintiff in error. The file folder, which is a part of the commission's record, contains an entry in ink which reads, 'July 7-41 Order of Referee is affirmed,' and below that appear the names of Commissioners King and Brannaman. It seems clear, from this entry, that the order of the referee was affirmed by the commission July 7, 1941, and not, as contained in the notice to plaintiff in error, July 11, 1941. This constitutes failure of due notice of the entry of the commission's award, and is...