MARKET STREET RY CO v. INDUSTRIAL ACCIDENT COMMISSION (1935)

After consideration of this cause, we hereby adopt as our opinion herein the following opinion prepared by Mr. Justice Sturtevant for the honorable District Court of Appeal, First Appellate District, Division 2:

The petitioner asks for a writ of review and an order annulling an award of a death benefit. Heretofore the petitioner was a corporation conducting a street railway system in San Francisco, and under authority duly obtained it was self-insured. On July 24, 1930, Alfred E. Hopkins, while employed by the petitioner and in the course of and arising out of his employment, suffered an injury from which he died on the same day. He left surviving him his wife, Minnie Hopkins. On the 30th of July, 1930, she applied for a death benefit. In due course her application was granted, and the respondent commission made an award. One of the findings was: ‘The employee left surviving him, wholly dependent, Minnie Hopkins, his wife, who is entitled to a death benefit of $4,695.00, payable at the rate of $19.56 a week, together with an award for $150.00 burial expense payable directly to Minnie Hopkins, the applicant. Said payments are based upon earnings of $5.76 a day for employment five and a half days a week.’ Neither prior to the date of said award nor before June 27, 1934, did any of the children appear in, nor were they mentioned in, the record. Thereafter, on July 12, 1933, Minnie Hopkins died. Soon after her death the children came forward. Frank Henry Hopkins filed a petition in his own behalf, and Helen M. Michael, his sister, also filed a petition in his behalf, and therein she asked for other relief.

The petitioner answered the petitions of said claimants, and objected at all times to the hearing thereof. Nevertheless, on the 22d of August, 1934, the respondent commission filed an ‘order altering and amending findings and award for good cause, reassigning death benefit and directing payment of certain accrued and unpaid death benefit.’ The material portion thereof is as follows: ‘2. The employee left surviving him, wholly dependent, Minnie Hopkins, his widow, and Frank Henry Hopkins, his adult child who was mentally incapacitated from earning who together became entitled to a death benefit of $4,695 payable at the rate of $19.56 a week, together with an award of $150 for burial expense payable directly to said widow. The payments are based upon earnings of $5.76 a day for employment 5 1/2 days a week.’

At this time the petitioner objects to the amended award and the whole thereof as being in excess of the jurisdiction of the respondent commission. The amended award was made more than four years after the death of the employee. It will be noted that it purports as of its date to so amend the original award as to include Frank Henry Hopkins as one who is wholly dependent. By the express provisions of the statute (2 Deering's Gen. Laws, Act 4749, p. 2272, § 24), no claim for compensation is assignable before payment. Neither does such claim survive if there be no dependent. Section 14. Under the general law in this state, except by a successor in interest, there can be no amendment changing the parties after the statute of limitations has run. Dubbers v. Goux, 51 Cal. 153; Merced Bank v. Price, 9 Cal. App. 177, 189, 98 P. 383; John Bollman Co. v. S. Bachman & Co., 16 Cal. App. 589, 117 P. 690 122 P. 835; Altpeter v. Postal Telegraph-Cable Co., 26 Cal. App. 705, 708, 148 P. 241. The question then arises whether the said statute changes that rule in so far as the facts in the instant case are concerned. The petitioner asserts the respondent commission had no such power at the time the order was made and it cites Jones v. Industrial Acc. Comm., 85 Cal. App. 201, 259 P. 73. The decision is directly in point and sustains the contention. The respondent commission cites Great W. P. Co. v. Industrial Acc. Comm., 196 Cal. 593, 602, 238 P. 662, as holding otherwise. We think it does not do so. The pertinent facts of that case, as stated by Mr. Chief Justice Waste (pages 600, 601 of 196 Cal., 238 P. 662, 665), were as follows: ‘William W. Savercool the grandfather, was not originally a party claimant in the proceeding before the commission. The original application for compensation for the death of the employee was filed December 28, 1920, by James and Lillian Savercool, father and mother of the decedent. Among the other allegations it was therein stated that ‘Wm. W. Savercool, grandfather, aged 73,’ was one of the dependents; the others being the father and mother, and nine brothers and sisters under 18 years of age. After proceedings had, an award made and set aside, the matter came on for rehearing on June 29, 1922. At that time applicant, James Savercool, requested that William W. Savercool, the grandfather, be joined as a party applicant in the proceeding. Over the objections of petitioner, first, that the request ‘came late,’ and second, that the grandfather ‘was not a member of the household,’ the order was made. William W. Savercool was not present at the hearing; no appearance was made for him, other than a waiver of notice and a consent that the hearing proceed, which was entered by the applicant, James Savercool. Thereafter the Commission made its first award, in which it held that the application of the grandfather was barred because not presented in time. When that award was annulled, and the proceedings remanded, the petitioner objected to the inclusion of the grandfather in the action on the ground that he had never requested any relief in the premises. Thereupon, apparently at the behest of the commission, William W. Savercool filed written appearance, and requested that an award be entered in his favor for such amount as he should be entitled to ‘by reason of the circumstances involved in this matter.’ Formal objection to the grandfather being included in the proceedings was made by petitioner, and, we may assume, overruled, for subsequently the respondent made new findings, in which it decided that the claim of the grandfather was filed within time.'

As to the belated filing of a formal application by the grandfather the court said: ‘No order was made in the matter of bringing William W. Savercool into the proceeding as an applicant until more than 1 1/2 years after the death of the employee. If he was not properly before the commission before that time, either actually or so constructively as to be subject to its jurisdiction, he was not brought in by either of his belated appearances.’ But, under the facts of that case, as from the beginning of the proceeding, ‘the grandfather was so constructively before the commission that it had jurisdiction to determine his right to claim compensation.’ Therefore on the point at issue, at page 602 of 196 Cal., 238 P. 662, 666, the court stated its ruling as follows: ‘Going one step further, we see no reason why the Legislature may not have intended to provide, in the proviso to section 11(a), that, when a claim for any portion of the benefits prescribed by the act has reached the point where it is necessary or expedient to submit the matter to the decision of the Industrial Accident Commission, the whole subject-matter of the controversy, including the further claims of the applicant, or of any and all other persons, should be thereby submitted to the jurisdiction of the commission for a complete determination, provided, of course, that all claims relating to the transaction be presented within the life of the continuing jurisdiction of the commission. That, we conclude, was the legislative intent, and the effect of the proviso added to section 11(a). From this conclusion it results that the respondent did not exceed its jurisdiction in adding William W. Savercool as a party claimant in the proceeding.’

In the instant case prior to June 20, 1934, Frank Henry Hopkins was neither constructively nor otherwise a party to the proceeding. The filing on that date of his application did not operate to make him a party. The respondent commission also relies on subdivision (d) of section 20, which provides a continuing jurisdiction. That section is pertinent when jurisdiction has once attached. However, Frank Henry Hopkins did not submit to the jurisdiction of the respondent commission until he filed his petition; therefore no question of continuing jurisdiction was involved. If no award had been made in favor of the mother, it is settled law that the respondent commission would have no authority, at a date more than one year after the death of the employee, to entertain Frank's claim for a death benefit. Marsh v. Industrial Acc. Commission, 217 Cal. 338, 352, 18 P.(2d) 933, 86 A. L. R. 563. Having failed to file an application within the year, the son was barred by the statute of limitations, and had no right to file one thereafter.

The award dated August 22, 1934, is annulled.

PER CURIAM.