120 Cal. App. 2d 145 | Cal. Ct. App. | 1953
Petition for writ of review on the ground that due process was denied petitioner at the hearing and in the denial of its petition for reconsideration.
Record
Frank A. Thrasher was employed by Lester P. Cahill as a gardener in Potter Valley and was injured in the course of his employment. Petitioner was Cahill’s insurance carrier until midnight, November 12th. Thrasher’s application to the commission alleged November 12th as the date of injury. He testified that the correct date was November 10th. The commission found November 11th to be the date. This evidently was an error as there is no evidence whatever concerning that date. The real controversy is whether the accident occurred in Thanksgiving week, which was after the Argonaut’s coverage of Cahill had expired. After an award to Thrasher against Argonaut, the latter petitioned for reconsideration. On its denial Argonaut filed its petition for writ of review. Although served in this proceeding, Thrasher has not appeared. The commission filed an answer in which it admits the asserted lack of due process and asks that in the interests of justice the findings, conclusions and award, and the order denying petitioner’s petition for reconsideration, be vacated and the matter remanded for further proceedings. Cahill filed an answer denying that petitioner was in anywise denied due process.
Was Petitioner Denied Due Process?
Although Cahill claims that he was covered by the policy expiring November 12, 1951, he gave petitioner no notice of the accident. Thrasher filed his application to the commission about October 2, 1952, almost 10 months after the injury. Petitioner’s first knowledge of the injury was on October 3d when it received notice that on October 2d the commission had issued its order joining petitioner as Cahill’s insurance carrier and had set a hearing at Ukiah for October 24th. October 17th, petitioner filed its answer stating that it expected to raise issues as to the nature and extent of disability, liability for medical treatment and average earnings at the time of injury. “Should other issues not now known to be proper and necessary later develop, we reserve the right to raise such additional issues in accordance with provisions of law and the rules of your Commission.”
The report of the referee on hearing refers to the desire of the carrier’s attorney to raise and produce evidence upon two new issues not previously made,—coverage and intoxication, and the refusal to hear the testimony upon such issue because not raised in the answer. “It was apparent that the carrier was not prepared to try their case and that no effective investigation had been made, up to at least the time of the answer in question. This case represents the second time in two days when carriers, represented by the same firm of attorneys, appeared for trial and were unprepared to prosecute their defense.” After discussing certain of the evidence, the report continues: “ At this point the carrier asked for a recess. The remark of the referee was ‘No.’ It was apparent from the handling of the case that the carrier had not investigated its claim, and with a number of eases on the calendar, I had no intention of taking time out so that the carrier could do what it should have done before.” The report gives the testimony of Mrs. Matlpek to the effect that Mrs. Cahill told her there was no insurance. The only reference in the digest of Simpson’s testimony to the time of the accident is a statement that he said the accident occurred on a Sunday. While detailing Mrs. Cahill’s testimony, the report states “that there were a bunch of people at the time. The carrier’s attorney asked for the names or identity of these people. The referee advised that he would listen to all material evidence but he had no intention of engaging in an investigation by way of discovery or to use the hearing for purposes of investigation or doing that which should have been done previously.”
. In the report of the referee on decision the referee states in effect that in his opinion the answer did not constitute an
In its petition for reconsideration petitioner set forth that its first knowledge of the accident came from the notice of hearing set for three weeks later; that in its answer it reserved the right to raise additional issues; that the case was assigned for investigation to independent investigators; that because of the remoteness of the ranch where the accident occurred (Potter Valley) it was impossible to complete the investigation, particularly since Cahill was represented by counsel and petitioner was not free to call on him for investigation; that petitioner had arranged for Cahill, Mrs. Cahill and Simpson to attend the hearing. They were requested to come to the place of the hearing in time for a conference but they did not arrive until after the hearing was in progress and counsel had no opportunity of discussing the case with them. As petitioner’s request for recess was denied it was required to put the witnesses on the stand without conferring with them. Thrasher was permitted to allege a date of injury new, different and other than the date alleged in the application with no correlative permission to petitioner to protect its rights. Though the employers knew of the accident when it happened the record shows no report was ever made to petitioner. Petitioner with
In answer to the petition for reconsideration Thrasher alleged that prior to the hearing an investigator assigned by petitioner called at the Cahill ranch and at the hospital where he was confined; that Mr. and Mrs. Cahill and Simpson were at the place of hearing at 8 :45 the morning of the hearing, and that petitioner’s attorney could have consulted them then; that the testimony of Goodell and Taylor could and should have been produced at the hearing. Thrasher denied that Taylor was present on the ranch at the time of the injury. He claims that although Goodell may have been on the ranch at the time Goodell did not help to extricate Thrasher from the fire, and that the issue of insurance coverage was fully developed at the hearing. Cahill likewise filed an opposition to the petition on the grounds that petitioner had failed to show diligence in discovering the evidence prior to the hearing and that it was only cumulative.
In the referee’s report suggesting denial of the petition, the referee states “it should be observed that in connection with the proffered issue of ‘coverage’ sought to be raised by the carrier, its rights were fully protected by the introduction ... of the policy”; that the proposed new evidence could have been discovered prior to the hearing. The petitioner is asking for a retrial “as a reward for its patent negligence.” “How long must we go on underwriting the
Due Process
The situation here is most unusual. The commission admits that the hearing was arbitrary and petitioner was denied due process. Thrasher, the injured employee, by failing to appear, makes no objection to our so finding. The only objection comes from the employer who at no time, either by himself, his wife or his stepson, has testified that the injury occurred during the period of coverage
It is the employer only who claims that Argonaut’s right to set up its defense should be denied because of claimed lack of diligence on the latter’s part. Yet the facts upon which the claimed lack of diligence is based show that it was the employer’s failure to cooperate with his insurer that caused the delay.
Certainly Argonaut was denied the right to cross-examine Mrs. Cahill as to the persons present at the time of the accident. In Walker Min. Co. v. Industrial Acc. Com., 35 Cal.App.2d 257 [95 P.2d 188], where the commission
As to the form of the answer, while it did not plead non-coverage, it did reserve the right to raise additional issues in accordance with law and the rules of the commission. In O’Hare v. Industrial Acc. Com., 44 Cal.App.2d 629 [112 P.2d 915], it was held that while the filing of an answer to a claim before the commission “is desirable” (p. 634) it is not mandatory. The court pointed out that under section 18 of the Workmen’s Compensation Act (now Lab. Code, § 5506) it is provided: “If the defendant fails to appear or answer, no default shall be taken against him, but the commission shall proceed to the hearing of the matter upon the terms and conditions which it deems proper.” Section 5505 of the Labor Code, which provides that a defendant may file an answer, states: “Evidence upon matters not pleaded by answer shall be allowed only upon the terms and conditions imposed by the commission, or by the commissioner or referee holding the hearing.” Here the referee made no attempt to impose terms, but arbitrarily and finally refused to allow petitioner to set up its defense. While the admission of evidence, the amendment of the pleadings, the conduct of the hearing, and the determination of a petition for reconsideration are matters in the discretion of the commission, and that discretion is very broad (see Peak v. Industrial Acc. Com., 82 Cal.App.2d 926 [187 P.2d 905]), nevertheless that fact will not justify an arbitrary denial of the right of a litigant to have a fair opportunity to present
The findings, conclusions and award, and the petition for reconsideration are annulled and the cause remanded to the commission for further hearing.
Peters, P. J., and Wood (Fred B.), J., concurred.
Both Cahills testified that the accident occurred on a Sunday, the stepson that it occurred during the Thanksgiving vacation and on a Sunday, while Thrasher says it occurred on a Saturday.