210 P. 127 | Utah | 1922
The principal contentions of plaintiff, the Continental Casualty Company, for annulling the award, may be stated: (a) That no policy of insurance was in existence at the date of the accident; (b) that the deceased was not an employé of the insured at the time.
It appears that the Elaterite Varnish & Rubber Company, a corporation, owned or held under lease certain mining property located near Duchesne, in this state. The home office of the rubber company is at Los Angeles, Cal. That company operated this property in the fall of 1920, and until about the 1st day of March, 1921. The testimony is to the effect that on or about March 1, 1921, one R. M. Pope entered pito a contract with the rubber company under the terms of which Pope was to take ore from the mine at his own expense and deliver the same to a railroad shipping point for the rubber company. For the mining and delivery of such ore he was to receive $55 per ton. Pope was a stockholder of the rubber company;
It also appears that on or about the 28th of July, 1921, either R. M. Pope personally or some one representing him applied to a Mr. Greaves with a view of obtaining through him some industrial insurance for the workmen employed in this mine. Mr. Greaves was engaged in the insurance business, and resided in Duchesne county. As a result of that interview Greaves wrote to J. B. Moreton Company of Salt Lake City. J. B. Moreton Company is admittedly the agent of the plaintiff. In reply to that communication the Moreton Company wrote Mr. Greaves for certain information necessary in the preparation of the policy, and advised him as to the amount of the premium and the basis upon which the premium was determined. That letter was received by Mr. Greaves, and handed to Mr. R. M. Pope, and he in turn left it with a brother of his, an attorney at law. At the same
It is provided in the policy that it shall be in force from August 1, 1921, to August 1, 1922. It is insisted on the part of plaintiff that no policy was in existence at the time of the accident; hence no liability on the part of the insurer. During the hearing before the commission counsel for the plaintiff stated that—
The casualty company “feels that the policy was secured through fraud, that the check and application and letter from Mr. Greaves was not forwarded to the National Surety Company until after Mr. Greaves had learned of the accident to Mr. Nielson.”
It does not appear that any suggestion was made either by Mr. Greaves or by Mr. Pope respecting the date when the policy should become effective. For some reason, possibly as a matter of convenience in computation, the agent of petitioner wrote into the policy that it should be in force from August 1, 1921. The policy was presented and made a part of the record before the commission.
Counsel for both sides have discussed in the printed briefs the relationship of Mr. Greaves to the casualty company. It is argued on behalf of defendant that he was an agent of that company. On the other hand, it is contended by counsel for
The Industrial Commission of this state is an administrative body. Some of its acts, in fact many of its acts, are quasi judicial, but it is in no sense a judicial body, and is distinctly an administrative body. Industrial Com. v. Evans, 52 Utah, 394, 174 Pac. 825; Utah Fuel Co. v. Ind. Com., 57 Utah, 246, 194 Pac. 122. The question of the dependency being admitted, the issuance and delivery of the policy also being admitted, and the accident happening within the time covered by the policy, the Industrial Commission was without authority to determine or hold that its terms were not-in force and binding upon the casualty company^ at the time of the accident.' If the policy was obtained by fraud or if a mistake was made in fixing the date when the same should become effective, the Industrial Commission is not the tribunal to grant the plaintiff relief. The policy was issued for a consideration named by the agent of plaintiff. That consideration was admittedly paid. We know of no principle of law, nor has any been called to our attention, denying to parties the right to assume obligations antedating the date of the contract if the parties so elect and the contract is founded upon a consideration. The policy was before the commission. The commission had no power to do otherwise than to enforce and apply its terms as the same appear in 'the policy. Plaintiff’s first contention must therefore fail.
It is further claimed by plaintiff that the deceased was not an employé of the insured at the time of the accident. The name of the insured as the same appears in the policy of insurance is the Elaterite Varnish & Rubber Company. It is, however, without dispute that the obligation assumed by the plaintiff in issuing said policy was for the protection 'of men working in the particular mine where the deceased was employed. The policy describes the location of the place and the employment as “dry canyon, about sixteen miles
After the ease was argued and submitted an opinion was rendered affirming the award. A petition for rehearing was subsequently filed, and upon a more thorough investigation and consideration of the record and authorities the court has concluded that its former opinion should not stand. That opinion is therefore recalled, and the views herein expressed will be published as the opinion in the case. The petition for rehearing is denied.
