171 P. 935 | Cal. | 1918
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *773 While working as a ship-joiner, Charles F. Mann sustained injuries which resulted in his death. Upon the application of his widow, the Industrial Accident Commission made an award of compensation against J.A. Johnson, as employer, and Employers' Liability Assurance Corporation, as insurance carrier. 'Upon the petition of the Insurance Company, a writ ofcertiorari was issued to review the award.
At the hearing the parties stipulated, among other things: "2. That the employment that said employee was engaged in . . . was such as to subject both the employer and the employee to the compensation provisions of the Workmen's Compensation, Insurance and Safety Act and to the jurisdiction of this commission. 3. That on March 9, 1917, Charles F. Mann met with injuries on the Oakland Estuary, *774 in Alameda County, California, and that said Charles F. Mann died on May 14, 1917." The application alleged that, at the time of his injury, Mann was engaged in work on a ship.
By its petition to the commission for rehearing the petitioner advanced, for the first time, the contention that the claim of the applicant was maritime in character, and that, under the decision of the United States supreme court inSouthern Pacific Co. v. Jensen,
The insurance carrier set up in its answer the defense that there had been a breach, on the part of Johnson, the employer, of certain warranties contained in the policy, and that upon learning of such breach the Insurance Company had canceled the policy. It is argued that the issues involved in this defense were such as could be determined only by a court of law in an action upon the policy, and that the commission *775
was without jurisdiction to pass upon them. We do not agree to this contention. The Industrial Accident Commission is, no doubt, a tribunal of limited jurisdiction. Its powers do not extend beyond the "settlement of any disputes arising under the legislation contemplated by" section 21 of article XX of the constitution. (Western Metal Supply Co. v. Pillsbury,
The petitioner argues, finally, that, granting the commission's jurisdiction, the facts were such as to force the conclusion that the policy was not binding. In the application *776 or "statement of particulars" furnished to the insurer, it was stated that no company had canceled or refused to issue workmen's compensation insurance in connection with the risk during the past three years, and that no company had insured the risk except the "Hartford" company. It appeared that these statements were not true, in that a policy had been issued by the New Amsterdam Casualty Company, and had been canceled by said company shortly before application made to the petitioner. We may assume that any defense available to the Insurance Company as against Johnson, the employer, would be equally available against the employee or his dependents. The statement with reference to the existence or cancellation of other insurance did not constitute a warranty. It was not contained in the policy itself, nor was it in "another instrument signed by the insured and referred to in the policy, as making a part of it." (Civ. Code, sec. 2605) There was no declaration in the policy that the violation of this provision should avoid it, and the breach, therefore, would not affect the validity of the insurance unless the statement or representation was material. (Civ. Code, sec. 2611) The evidence on the subject of materiality was somewhat vague. Certain correspondence was introduced, indicating that the New Amsterdam Company, in notifying the insured of the cancellation of the policy issued by it, had attributed its action to a ground which would probably have made the fact of cancellation immaterial, so far as it might affect another company to which application might subsequently be made. It may be, as petitioner contends, that the statement made by the New Amsterdam Company to Johnson was not evidence of the true ground which induced the cancellation. But it seems to be settled that the burden of proving the materiality of an alleged representation is upon the insurer. (2 Cooley's Briefs on Insurance, 1182.) The petitioner did not meet the burden, and the commission was therefore authorized to find against it.
It is objected that there was no express finding that the representation was immaterial. But no such issue was presented by the answer of the Insurance Company. The commission found that the policy of insurance was in full force and effect at the time of the injury, and we think this finding was sufficient for all purposes. We may, for the purposes *777 of this proceeding, agree with the petitioner that the further finding that the policy had not been validly rescinded is not material, and does not of itself dispose of the defense attempted to be set up. But the answer alleged rescission, and the fact that an unnecessary finding was made does not impair the sufficiency of the findings made.
The award is affirmed.
Melvin, J., Victor E. Shaw, J., pro tem., Wilbur, J., Richards, J., pro tem., and Angellotti, C. J., concurred.
Rehearing denied.