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District Court of Appeal, First District, Division 1, California.


Civ. 11346

Decided: July 25, 1940

Geo. B. Harris, of San Francisco, for petitioner. Everett A. Corten, of San Francisco, for Industrial Acc. Comm. Keith & Creede, of San Francisco, for Fireman's Fund.

The petition for rehearing filed herein by the respondent commission contains among others two misstatements of the state of the record which call for denial. The first is as follows: “It was only after the case had been fully retried on the petition to reopen that the Commission again denied the employee a recovery” (emphasis ours); the second is: “The testimony of the Chinese cook was presented on the merits” (emphasis not ours). The cause on the merits was determined against Clendaniel on November 18, 1937, and a rehearing was denied on December 9, 1937. The proceeding that was before the referee on July 20, 1938, at the time the Chinese cook testified as a witness, was not one initiated by a petition for rehearing authorized to be filed by section 5900 of said code, St.1937, p. 185, wherein the commission in denying the same may confirm its previous determination without a hearing (sec. 5906, Labor Code), but was one initiated by a petition to reopen filed under the provisions of sections 5803–5805 of the Labor Code; and on September 8, 1939, the petition to reopen was denied, the order reading as follows: “Applicant having filed petition to reopen for good cause, and all parties having appeared, and said petition having been heard before Joseph F. Ferrea and Margaret McGuire, Referees, and said matter having been submitted; and no good cause appearing why decision entered in the above entitled matter November 18, 1937, should be reopened for consideration, it is ordered that said petition to reopen for good cause be and it is hereby denied.” It will be seen, therefore, that all that was before the referees at the time the Chinese cook was produced as a witness was the question of whether the case should be reopened. If reopened then as a matter of right on the issue there involved petitioner could present all his evidence as on a trial before one referee. If a proper case to reopen is presented, then the reopening thereof is equivalent to a new trial on that issue. Obviously, it is one thing to require the petitioner on a petition to reopen to attempt to overthrow existing findings and quite another to grant him an entire new trial on the issue involved.

Rehearing denied.