*1 Madison, Prince, and Deputy Com’r, PILLSBURY, Eugene F. D. M. v. ALASKA Gill, Cal., Francisco, for Francis all of San PACKERS ASS’N. v. SAME. WEIDEMANN GARRECHT, WILBUR, Before No. 7853. HANEY, Judges. Circuit Appeals, Circuit. Ninth Circuit Court 21, Sept. GARRECHT, Judge. Circuit appellant On November right injured arm
Weidemann fell Nelson, and hand the Metha while on board operated sailing by the vessel owned and lying in the harbor Oak- land, Proper having giv- Cal. notice en, pursuant provisions Long- to the Compen- shoremen’s Harbor Workers’ seq.), sation Act 901 et U.S.C.A. § 27, 1930, hearing January on held be- appellant Pillsbury, fore the ascertain compensa- appellant right represented at tion. The 'hearing, previously having written Pillsbury appellant desired him it “pass responsibility par- on case.” ticular 1, 1930, Pillsbury filed his On award, as follows: employed (1) injured; in- (2) that the when jury navigable waters of occurred on States; suf- (3) that Weidemann United disability, entitling temporary total fered compensation, “until him a week as to $25 further order of the Commission- er.” appellee to ordered the The award also including “to and pay Weidemann $264.28 payments
January hereto- less all account.” fore made on said August advised On fully recov- that Weidemann requested injury and ered from his liability under the award be termi- appellee’s resisted the nated. Weidemann notice, proper Accordingly, request. of termi- August the-matter liability Pills- heard before nating the who, ruled bury, right arm (1) That Weidemann’s follows: November permanently disabled on became anniversary of the acci- $1,025 unpaid dent; ac- that there was (2) McPike, Atty., H. H. U. S. and Robert compensation due Weidemann from crued McWilliams, Murman, S. P.
L. Asst. August November Francisco, Cal., Attys., S. all of U. San ordered the Pillsbury. appellant a week pay, in addition to $25 thereafter, Au- beginning Resleure, Pinckney, weeks of San 60.64 Vivell & hearing. Cal., appellant gust 28, of the last Francisco, the date Weidemann.
759 by him appellee -purview received of It admitted that the within is Longshoremen’s copy foregoing of orders Harbor a each of the two and Workers’ ” * * * Compensation deputy of the commissioner. Act. thereafter, Section (a) 21 (b) 30 of Within the act in question petitioned Pillsbury part his order of reads aside in follows: set as rehearing, a September and for “(a) compensation A order shall be- claiming part fraud on of Weidemann come effective when in filed the office of the question and lack as to the provided commissioner as in section February 1, 1930, in of notice the order of 19 chapter], and, 919 of this un- [section liability any compensation, proceedings less suspension for the or set- in addition to the ting aside of such are order instituted as 16, 1931, ground provided On October in (b) section, subdivision of this fraud, establish had failed to expiration shall become final at the of the ground jurisdic- and on the further that the day thirtieth thereafter. adjudicated by tional facts “(b) If law, not in accordance a February ap- had established compensation may suspended order or compensa- pellee’s liability for the accrued aside, part, in set whole or in through in- 16, 1931, tion awarded on Pills- junction mandatory proceedings, or other- bury appellee’s petition for denied the a re- wise, brought by any party in interest hearing. ground On the fraud on against' making commissioner shown, part had been and instituted in the Federal motion for nonsuit court below sustained a court judicial district for the district in 3056-L, equity arising action, in out injury pt. 2, occurred.” 44 Stat. facts, brought by same (33 1436 (a, b). U.S.C.A. § not now but which is before Section 22 1437), Stat. as it stood court. this present at the time the brought, suit was November filed On “Upon was as follows: initiative, his own present action. A de novo was upon application any party or in inter review the fact of held to est, ground on the change of a in condi employment by Weidemann’s Thereafter, tions, may any the court below entered de- during time the term of an award and after setting Pillsbury’s Sep- aside cree orders of compensation respect order in of stick tember October en- final, award has become review such order joining enforcing the com- from procedure prescribed in accordance with the award, ordering pensation that Weide- respect of claims in section and in nothing take from mann accordance with such section issue a new by any reason of account may terminate, order which by Pillsbury. orders theretofore entered continue, increase, or decrease such com present originally action While -was pensation. Such new order shall not af equity, stipulation filed suit in as any compensation paid fect under author admiralty cause was transferred ity prior order.” docket, simultaneously to be tried with No. case, Pillsbury’s In instant first or- 3056-L, equity, supra. der, February awarded Weide- assignments Three of error filed January mann week from $25 Pillsbury present single question; name- further order “until Commis- jurisdiction ly, the court below Did have sioner.” action, under to entertain section 21 Thus, provisions both of the stat- (b) (a) Longshoremen’s itself, ute the terms of the order Compensation Harbor Workers’ Act of jurisdiction commissioner retained 1927? compensation. over Weidemann’s claim appellant Weidemann also asserts But that was limited section as the lower error court’s as to non- only 22 to be exercised in the event that employment, which was follows: “Re change there was “a in conditions.” Pillsbury, spondent with the exercise of care, prior words, supplemental reasonable should known other entry September 16, 1931, order and did award of not and could respondent of' jurisdictional question review the not for, employment; obviously, Weidemann was not an of libel- susceptible [appellee], injury alleged any ant and that “change is condi- lack suggests Such strongly em- tardiness either claimant ticns.” The due in view of diligence particularly time shipowner at ploy of the — “go fact he did not Nothing that Tichenor admits employed. injury, he is *3 trying up out round evidence.” the status to can alter that afterward occurs the accident. time of that at the exists ship- probable Another reason for the Pillsbury’s owner’s inaction first order “change conditions” expression in lump-sum was small. that the award was condition physical the change to in refers a clearly appellee’s This is indicated in the Shipping employee. Atlantic Coast brief: F.Supp. (D.C.) 9 Co. v. Golubiewski “Upon discovery appellee of facts that was not liable the to Weide- appellee charges that libel, In its the wrist, Deputy mann’s hand and it was the “fraudulently misrepresented” duty appellee Commissioner’s to absolve Pillsbury, and facts to the liability. perpetrated against” that fraud had been “a “Instead, appellee con- that he held below, however, appellee. The court not sented to a unequivocally on the sub expressed itself thirty seeking injunctive redress within in anything his ject “I don’t see of fraud: days only when $264.28 which indicates conduct [Weidemann’s] involved, had no and that he therefore was trying to deceive or defraud me he was relieve of the burden authority to to. get something that he was entitled not twenty supplementary made of his award honestly believes he believed and think months times that amount.” later ten now, employed was at that that he probably, own.) (Italics our Consequently, there is no element of time. below, Again, in at the court I can fraud that see.” appellee’s proctors more one of the even Indeed, testimony of Austin K. clearly indicated that the small size president general Tichenor, vice man- controlling award was the reason conclusively ager appellee, shows appellee’s failure to com- contest rely upon that he did not first missioner’s order: status, upon statements as to his but your “Q. words, you In other if take Roy Astrup, superintend- E. statements of Act, construction of the of em7 Alameda, appellee’s shipyards ent of the at ployment finally by the first was settled questions, searching Cal. In a series of finding? A. Yes. Judge District himself elicited informa- you “Q. tion from Tichenor: final could that became When indefinitely up on go then build on words, you go “Q. In other out didn’t against Packers Alaska judgments the Association, trying up round evidence? A. prevent coming us from “Q. sympathy? It more matter of em- showing he not our back years. A. I knew both these men for appeal unwilling we ployee, though zvere fact, “Q. But as matter of even (Italics own.) our $264?” the case for might though they false statements be that, may, undisputed as it it is Be that you making representa- didn’t affect in despite fact that due notice was served your company? No, tion to A. not at that not to appellee, the chose time. represented hearing at before upon your subordinate, “Q. You relied contrary, deputy commissioner. On the Captain Astrup, you? did A. I did.” « filed before a formal 'the answer, admitting relationship of “that the libel, appellee averred that it In its employer existed at the time not, diligence, “could reasonable appellee rep- injury.” Nor was surrounding discovered” evidence hearing, August at the second on resented injury. circumstances of Weidemann’s in which culminated the issuance “open brief, its stresses dated second spirit cooperation Deputy with the Com- due although hearing notice of such “appellee orig- missioner” was served inally consenting misled into award appellee’s however, proc- strange, thing,” “The whole It seems $264.28.” brief, employer candidly require that an would 23 months tor states in his “had been Pillsbury’s right certain indi- left to discretion to do the ascertain whether or thing employ given parties.” vidual was on date. between its (cid:127) brought order the association after the Pillsbury’s “discretion” But now newly and situation man- discovered in a exercised proves to have is to the attention the latter acceptable ner Sep- the order of a motion to set aside Commissioner’s complaining of the ground of fraud tember jurisdiction. lack procurement of mistake the second (33 U.S.C.A. § act 21 of the Section order. was denied This compensation order 921) provides that a employment had ground that the fact of pro- days, unless final after become shall the time of the first been determined instituted are abrogation ceedings for its and could not be reconsidered Asso- time. within District Court *4 application new award based the Marshall Corporation v. Indemnity ciated new conditions. 236; 235, (C.C.A.) Id. F.(2d) (C.C.A.9) 71 provision, that In view of F.(2d) 420. deputy 71 This decision of the commission made out record under the particularly observed, er, and be it was rendered before the fact case, jurisdictional permit to the Supreme in this decision of the Court in Crowell months 20 questioned be employment to Benson, 285, of 52 v. 285 U.S. S.Ct. 76 L. original the February 23, after Ed. decided and away frittering think, would, result we inwas accordance with the views of the and Longshoremen’s purpose of the commissioner, the embodied in as Compensation Act. opinion Harbor Workers’ (see dissenting Judge its rules Benson, supra, Brandeis in Crowell v. 285 bring to act is purpose of the the 67, 68, 89, pages 52 S. U.S. note liti and “final awards about termination 598). case, Ct. L.Ed. 76 days 30 seems gation” Supreme jurisdic held that the Court the by District case recognized in another deputy finding of tional United suit. the instant tried judge who binding on the District Court or on F.(2d) 55 (D.C.) Fruit Co. v. parties brought in an action within the act, but that time limited reversed. Decree court, upon de was be tried novo in there introduced. WILBUR, Judge (dissenting). Circuit author- Association The Packers Alaska Supreme Until that decision of agent Ernest Califro employee and Court, its ized whether it was a matter of doubt capacity of one of its cubic ascertain the juris be a trial de novo on the there could Nelson, schooners, for that and uncertainty, the Metha question. It was this dictional procure the assistance purpose to impelled doubt, the association John' not, found, and, if Lyons, if could be he newly evidence as to present discovered its Klotz, Capt. Frank Capt. commissioner, services deputy to the Weidemann, the hatches of to remove E. application to vacate the form of an Califro could Nelson. Ernest denial, the Metha Upon September 16. Weidemann, Capt. Lyons find commissioner, petition by deputy of its John Klotz, Capt. procured he the services so rehearing on October capacity proceeded to measure filed the on November association they were in hold schooner. While alleging foregoing facts present action vessel,' engaged, Capt. so Weidemann of the injunction against praying for an unsolicited, attempt- deck, and, appeared on supplemental order enforcement hold, doing and in so into the ed descend Capt. the additional awarding Weidemann in- ladder and suffered the fell from the $2,850 injuries for his which of about sum compen- he was awarded juries for which permanent. to be The trial found were by deputy commissioner. sation alleged the associa court found facts Capt. association, believing permanently enjoined The true and tion to be employed by Califro, had been order. fact of the The as enforcement authorized, ab- during the latter’s as Capt. by the court Weide certained sence, deputy notified the commissioner of of the associa mann was requested him to make the the accident jurisdic at the time tion appropriate order. This done. by the determined tional, one novo, court, de Ben Crowell v. After the second award was made on 22, 52 76 L.Ed. son, S.Ct. 285 U.S. September the association ascer- seasonably brought to the question is he tained from Califro that had not em- if question.then The of the court. Capt. Weidemann, ployed and within attention 30 762 injunctive relief, (b), bound is this: the association 33 Was U.S.C.A. § the first and 1437), section 22 of the act Stat. when, commis wherein made com award was great ten times missioner second and to make the sioner made the order is -a sufficient injury? reason granting er the same Ben award for relief. Crowell v. son, however, supra. application, Such an understand, associates, My I hold as days must be period made within of 30 judicial review of that the failure to seek after the award filed in the office days question within 30 compensa commissioner. The new ques foreclosed that after the first award tion order was made and filed second, additional tion at the time of 1931. This order the terms This is in accord with greater act became final and conclusive dissenting members of the the view of the expiration of 30 after it filed. 33 Court, expressed by Supreme Justice U.S.C.A. (a). to the § Benson, supra, but v. Crowell Brandeis 16, 1931, upon court was made November is, believe, opposed to the views of theory that action of the com by Chief majority of the court as stated missioner rehearing, the motion for a held, Supreme Hughes. The Court *5 Justice in Septem and for a vacation of the order of effect, finding of the ber final awarding compen fact of commissioner as sation, application as to which an for an otherwise, effect, probative or injunction might be made to the court with question in court. The the trial of that days. in 30 The order of 1-6was validity deputy commissioner’s or award, the order-making ap and the depended upon Supreme der held Court plication rehearing for a or a reconsidera employment, the existence of a contract of tion, order, or vacating did not ex jurisdictional decision his tend the time for the commencement of an way upon the question binding was in no action in injunc the District Court for an court, required to determine that which was tion. That time ran from filing question upon presented to it new parties. If were a court rather than an administrative I opinion am ap- therefore officer, jurisdiction finding his in the first plication late, to the District Court was too proceeding would no doubt conclusive and proceedings that the should have been supplementary applica the second dismissed Consequently for that reason. tion for due to the increased concur reversal, in the order of but am of development of conditions foreseen opinion that the trial court should be di- - compensated in the first instance. But rected to dismiss the action because filed of the administrative officer too Tate. any dependent upon all to take action at is fact of this factual Congress pow one which had no away er to take from the court. Crowell Benson, supra. v. the first order is conceded, effective and enforceable is be days. cause attacked within It does not follow that the second BELRIDGE OIL CO. v. COMMISSIONER OF INTERNAL REVENUE. authority commissioner had no jurisdiction make, is sustainable because previous finding jurisdic erroneous Appeals, Circuit Court of Ninth Circuit. association, tion was consented to Sept. 21, 1936. complied because the order was the mistaken belief that the fact was as found commissioner. The acquire ju could not risdiction to make supple a further and mentary order merely by of relief reason of erroneous fact in the first instance. The law under expressly he acted provided that the award, second first, subject like the
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