Ives v. Industrial Accident Commission

STURTEVANT, J.

This is an application for a writ of review directed against the Industrial Accident Commission. On the fifteenth day of January, 1923, George A. Ives was engaged in grading and building a new road. He was in the general employment of Costello & Ritchie and in the special employment of J. P. Holland. While engaged in his employment he was riding on a tractor. Costello & Ritchie were insured by the Ocean Accident and Guarantee Corporation. While so riding on the tractor a truck operated by the San Francisco Motor Drayage Company ran into the tractor on which Ives was riding and injured him. At the time of the accident mentioned J. P. Holland was insured by the General Accident Fire and Life Assurance Corporation. On the second day of March, 1923, Ives filed his application for adjustment of his claim under the Workmen’s Compensation, Insurance • and Safety Act of 1917 (Stats. 1917, p. 831). Thereafter the Commission made an award against the Ocean Accident and Guarantee Corporation and against the General Accident Fire and Life Assurance Corporation; thereafter it made a supplemental award against the same corporations, and thereafter it made a second supplemental award for permanent disability against said corporations, and each of them, in the sum of $2,687.07, payable at the rate of $20.83 a week beginning as of January 23, 1923, for 129 weeks until the whole of said amount shall have been paid, and that the Ocean Accident and Guarantee Corporation, Ltd., and General Accident Fire and Life Assurance Corporation, Ltd., be credited with all compensation theretofore paid by them on account of temporary disability.

On the twenty-seventh day of April, 1923', Ives commenced an action in the superior court against the San Francisco Motor Drayage Company et al., in which suit Ives sought to recover damages from the defendants therein for the injuries sustained by him and. which injuries are the

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same as those hereinabove referred to. On January 18, 1924, the Ocean Accident and Guarantee Corporation joined in said suit as a party plaintiff. Thereafter Ives, as the plaintiff in said action, entered into a purported compromise agreement with the defendants in said action by the terms of which he attempted to release said defendants from all liability for the sum of $1,727.35. At the same time defendants in said action paid to the General Accident Fire and Life Assurance Corporation the sum of $872.65 and tendered a like sum to the Ocean Accident and Guarantee Corporation, Ltd., but it refused to accept the tender; the total payments made or tendered being $3,472.65. On the twenty-sixth day of May, 1924, the Ocean Accident and Guarantee Corporation filed with the Commission an application for a rehearing and set up the purported compromise as newly discovered evidence and asked for relief. Later a rehearing was granted and the Commission made a supplemental award purporting to amend its award of May 14, 1924, so that the same among other things, provided: “It is further ordered that defendant Ocean Accident and Guarantee Corporation be, and it is hereby credited with payment in full of its share of the supplemental award entered herein on May 14, 1924.” The petitioner does not challenge the figures as being incorrect, but the exact attack made by the petitioner is “that in making said amended supplemental award of September, 1924, in so far as it credits Ocean Accident and Guarantee Corporation, Ltd., with payment in full or in part of its share of the supplemental award made by the Commission of May 14, 1924, the Industrial Accident Commission acted without and in excess of its powers. ...” Elaborating his contention in his brief, the petitioner says: “It is conceded that the settlement made by the petitioner in full satisfaction of his claim in said action was without the written consent of either the Commission or the court in which such action is pending. If, therefore, for that reason said settlement was invalid as provided by section 26 of said Act, the Ocean Accident and Guarantee Corporation, which is now the sole plaintiff in such action, can proceed to trial and none of the defendants in such action can avail himself of the defense that one of