James L. McLaughlin Co. v. Industrial Accident Commission

CASHIN, J.

A proceeding in

certiorari

to review an award made by the Industrial Accident Commission.

On December 7, 1926, George Heine filed an application with the Commission for the adjustment of a claim for compensation, the defendants named in the application being James IT. McLaughlin (whose true name was James L. Me

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Laugklin), who was alleged therein to he the employer of the applicant, and the New Amsterdam Casualty Company, the alleged insurance carrier. The defendants named appeared in the proceeding and McLaughlin testified at the hearing. The Commission on January 29, 1927, made an award for normal compensation against McLaughlin, who, according to the findings, was the employer, and the New Amsterdam Casualty Company, found to be the insurance carrier, and awarded the applicant a further sum based upon the serious and wilful misconduct of the employer in failing to comply with the safety orders of the Commission.

After the award was made defendant McLaughlin filed a petition for a rehearing, alleging that the applicant at the time of the injury was employed by the James L. McLaughlin Company, a corporation, of which the defendant was president. A rehearing was granted, and on April 6, 1927, the time fixed therefor, the corporation was formally made a party to the proceeding, the order providing that the ease should be open for an answer to be filed within three weeks.

At this hearing it appeared from the testimony of McLaughlin and the statement made by the counsel representing the Casualty Company that both understood and believed that the original proceeding was against the James L. McLaughlin Company, and that they were not apprised that this corporation was not named in the application as the employer until after the award was entered. It further appears from the attorney’s statement that at the hearings preceding the award he was representing the James L. McLaughlin Company as well as the insurance carrier, and that the latter carried insurance only for the corporation. At the time of the rehearing the attorney mentioned entered on behalf of the James L. McLaughlin Company an oral plea, alleging that more than six months had elapsed between the date of the injury and the date when the corporation was made a party to the proceeding, and that the claim for compensation based upon the alleged misconduct of the employer was barred by the provisions of section 11 of the Compensation Act (Stats. 1917, p. 841).