Seckels v. Department of Industrial Relations

CONREY, P. J.

Petitioner Seckels was the employer of respondent Kirk, who sustained an injury arising out of and in the course of his employment. Kirk instituted a proceeding before the Industrial Accident Commission against Seckels and his insurance carrier. In that proceeding an award was- made against the insurance carrier, and an additional award based upon serious and wilful misconduct of the employer was made against said employer. Thereafter the employer applied to the commission for a rehearing, which was granted. After the taking of some additional evidence, the original award was affirmed.

[648]

Petitioner now asks for a writ of review, and in his petition claims that the commission, in rendering said decision and making said award, acted without and in excess of its jurisdiction; that there is no evidence that Kirk’s injury was proximately caused by the serious and 'wilful misconduct of his employer; that the commission in making said award acted without and in excess of its jurisdiction, in that the commission refused to hear the testimony of witnesses of the defendant employer, and of the defendant himself, who would have testified to material facts pertinent to the issues; and that said arbitrary refusal by the commission to hear said testimony constituted a denial of petitioner’s right to due process of law in the proceeding against him.

“The provisions of the Code of Civil Procedure of this state relating to writs of review shall, so far as applicable and not in conflict with this act, apply to proceedings under this section.” (Workmen’s Compensation Act of 1917, p. 876, sec. 67d.) The petition for a writ of review must be verified. (Code Civ. Proe., sec. 1069.) The answer of an officer of the state to a complaint or petition need not be verified. (Code Civ. Proc., sec. 1109, and sec. 446.) An application for a writ of review, in a proceeding for review of an order of the Industrial Accident Commission, should conform to the requirements of rule XXVI, section 4, of the rules of the supreme court and district courts of appeal. It is there provided that “such application, if based upon a want of evidence sufficient to warrant the conclusion of the Commission, must fairly state all of-the material evidence relative to the point as to which such want of evidence is claimed to exist.” The answer of the commission “shall be limited to a brief statement of the grounds of the order or award, and to the supplying of any evidence, omitted or misstated in the application.” In making an application to the commission for a rehearing in respect to any matter covered by its order, the application shall set forth specifically “every issue to be considered by the Commission.” The applicant is deemed to have finally waived “all objections, irregularities and illegalities concerning the matter upon which the rehearing is sought other than those set forth in the application for such rehearing.” (Workmen’s Compensation Act of 1917, p. 873, sec. 64c.)