Maxfield v. Industrial Accident Commission

DORAN, J. This is a petition for review of the second award of the respondent Industrial Accident Commission.

The facts are, in brief, as follows: ■ One John F. Willis, while employed on December 27, 1935, as a painter and paperhanger on a salary basis, by Maxfield, Wilton and Associates, Inc., who were in the property management business, sustained injuries occurring in the course of and arising out of his employment.

The insurance carrier, when informed of the accident, denied liability, claiming that the work done by said employee “was not within the classification covered by the policy”.

An application was filed with respondent commission, by the injured employee, for compensation against the petitioner herein as the employer, and against the Colonial Mutual Compensation Insurance Co., Ltd., as the carrier. After a hearing, the commission made its findings and award, fixing the compensation recoverable, and holding that the petitioner was not insured and that the insurance company was not the carrier, freeing the latter from any liability.

By a judgment of the District Court of Appeal, Second Appellate District, Division Two, upon a petition for a writ of review, the order of the commission was annulled and the matter was returned to respondent commission for further proceedings not inconsistent with the opinion of said court. A petition for hearing was filed by the carrier in the Supreme Court, which was denied. Thereafter, the commission conducted a hearing, received further evidence, and made [665]its award, which was substantially the same as the award originally made by said commission.

Petitioner herein seeks an annulment of the second award of respondent commission, contending, with reference to the additional testimony which was taken on rehearing, “That none of said testimony was new or different in substance from that introduced at the former hearing before respondent and that the condition of the record after the introduction of such further evidence was not different from the condition of the record as it existed at the time the previous and original award was annulled.”

After the decision of the appellate court became final, the commission, as heretofore mentioned, proceeded to reexamine the issue as to the understanding which was had between the agent of the insurance company and petitioner’s employee in charge of escrows and insurance, at the time the policy in question was being secured. At the first hearing before the commission the agent of the insurance company testified that: “He (petitioner’s employee) said to write the policy with the classification mentioned only—with general maintenance of apartments and also covering the office help of Maxfield, Wilton and mail it to him for his inspection.” (Italics added.) At the second hearing, upon the additional evidence of which respondent commission relies to support its second award, the agent of the insurance carrier testified that: “Mr. Wright (petitioner’s employee) said to send the policy to him and which he would review, and if it suited his purpose, he would pay for it. . . . He said to send the policy over for his approval. We did not discuss the payment of the policy; he was discussing whether the policy would meet his approval or not. Q. Was there anything said then about payment of the premium on the policy? A. No.” (Italics added.)