249 P. 6 | Colo. | 1926
THIS action was brought by the plaintiff Brady in the district court to review and set aside the findings and award of the defendant, the Industrial Commission, entered against him on October 22, 1925. The defendant, the Industrial Commission, will be referred to here as the "Commission," and the defendant, the Colorado Fuel Iron Company, as the "Fuel Company."
The Commission answered the complaint, and the Fuel Company filed a demurrer thereto. On April 14, 1926, the Commission asked leave to withdraw its answer and join in the demurrer of the Fuel Company, which was granted. The demurrer was then heard and sustained, and the plaintiff electing to stand by his complaint, judgment was entered for defendant. Plaintiff brings the case here for review. From the record it appears that plaintiff presented to the Commission his application for compensation on account of injuries alleged by him to have been sustained, in the course of his employment, while acting as switchman, coupling a yard engine to a car loaded with steel, and being at the time, as alleged, in the employ of the Colorado-Wyoming Railway Company and the Colorado Fuel Iron Company.
On September 1, 1925, a hearing was had before a referee of the Commission as to the liability of the Fuel *64 Company, the claim against the Colorado-Wyoming Railway Company having theretofore been dismissed, and findings and award entered by the referee against the plaintiff. Thereupon plaintiff petitioned the Commission for a review of the findings and award of the referee. The referee did not amend or modify the order, but referred the entire case to the Commission.
On October 22, 1925, the Commission made and entered a supplemental award, after having reviewed the entire record and prior proceedings, and denied plaintiff's claim for compensation. Plaintiff's complaint did not allege that a petition for review had been filed by plaintiff after the supplemental findings and award had been made by the Commission on October 22.
Plaintiff contends that the court erred in permitting the Commission to withdraw its answer and join in the demurrer of the Fuel Company; also that the court erred in sustaining the demurrer and holding that the complaint should have disclosed that plaintiff filed with the Commission a petition for review of its supplemental award of October 22.
We think the court did not err in either particular. As to the first, the Commission, by its answer, did not waive the question of the court's jurisdiction of the subject matter of the action, and consequently there was no error in permitting it to join in the demurrer of the Fuel Company. As to the second, the facts disclosed by the record bring this case within the authority of Carlson v.Industrial Commission,
It is urged, however, that the filing of a petition for review of the order made by the Commission on October 22 would accomplish nothing, and that this case is controlled by Carroll v. Industrial Commission,
The demurrer was properly sustained, and the judgment should be affirmed.