United States Fidelity & Guaranty Co. v. Pillsbury

California Supreme Court

United States Fidelity & Guaranty Co. v. Pillsbury

162 P. 638, 174 Cal. 198, 1917 Cal. LEXIS 771

CourtCalifornia Supreme Court

DecidedJanuary 10, 1917

DocketS. F. No. 7773.

StatusPublished

Cited by6 cases

This text of 162 P. 638 (United States Fidelity & Guaranty Co. v. Pillsbury) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States Fidelity & Guaranty Co. v. Pillsbury, 162 P. 638, 174 Cal. 198, 1917 Cal. LEXIS 771 (Cal. 1917).

Pincite

Opinion

LAWLOR, J.

Writ of certiorari to review and annul an award for disability 'indemnity made by the Industrial Accident Commission in favor of James E. McGee and against the petitioner, as the insurance carrier for the Daniel Contracting Company.

For a time after the accident the petitioner made voluntary payments to the injured employee. But the payments were finally discontinued on May 12, 1915, upon the ground that the disability had ceased. After more than six months had elapsed from the date of the last payment, the employee applied to the commission for compensation, and was awarded a permanent partial disability indemnity. The petitioner raises the objection that the commission, under the provisions of section 16 (a) of the compensation act, was without jurisdiction to make the award. This identical question was decided adversely to the employer in Red River Lumber Co. v. *199 Pillsbury et al., ante, p. 37, [161 Pac. 982]. The ruling therein is decisive of this appeal.

It is proper to note, however, that the case at bar differs in one particular. Here the petitioner filed an answer. But he does not, directly or indirectly, plead therein the statute of limitations under section 16 (a); or otherwise suggest or raise the point that the claim of the applicant is barred. The answer, after alleging full payment of compensation in certain installments which are set forth, reads as follows: “That applicant’s disability arising out of the alleged accident ceased and terminated on or before said May 12, 1915, and defendants deny that applicant is entitled to any further compensation than the amount paid as above alleged.” There are no further allegations. It is obvious that the answer was intended merely as a defense on the merits of the claim. Although the date of the last payment is alleged, the answer does not refer to the time of filing the application for compensation, or even suggest that it was filed more than six months after the said payment. The petitioner did not, in fact, assume to interpose any form of plea based upon the statute of limitations, but raised the point for the first time in the petition for a rehearing of the award.

The award is affirmed.

Shaw, J., Melvin, J., Henshaw, J., Lorigan, J., and Angellotti, C. J., concurred.

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LAWLOR, J.

Writ of certiorari to review and annul an award for disability 'indemnity made by the Industrial Accident Commission in favor of James E. McGee and against the petitioner, as the insurance carrier for the Daniel Contracting Company.

For a time after the accident the petitioner made voluntary payments to the injured employee. But the payments were finally discontinued on May 12, 1915, upon the ground that the disability had ceased. After more than six months had elapsed from the date of the last payment, the employee applied to the commission for compensation, and was awarded a permanent partial disability indemnity. The petitioner raises the objection that the commission, under the provisions of section 16 (a) of the compensation act, was without jurisdiction to make the award. This identical question was decided adversely to the employer in Red River Lumber Co. v. *199 Pillsbury et al., ante, p. 37, [161 Pac. 982]. The ruling therein is decisive of this appeal.

It is proper to note, however, that the case at bar differs in one particular. Here the petitioner filed an answer. But he does not, directly or indirectly, plead therein the statute of limitations under section 16 (a); or otherwise suggest or raise the point that the claim of the applicant is barred. The answer, after alleging full payment of compensation in certain installments which are set forth, reads as follows: “That applicant’s disability arising out of the alleged accident ceased and terminated on or before said May 12, 1915, and defendants deny that applicant is entitled to any further compensation than the amount paid as above alleged.” There are no further allegations. It is obvious that the answer was intended merely as a defense on the merits of the claim. Although the date of the last payment is alleged, the answer does not refer to the time of filing the application for compensation, or even suggest that it was filed more than six months after the said payment. The petitioner did not, in fact, assume to interpose any form of plea based upon the statute of limitations, but raised the point for the first time in the petition for a rehearing of the award.

The award is affirmed.

Shaw, J., Melvin, J., Henshaw, J., Lorigan, J., and Angellotti, C. J., concurred.

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Bluebook (online)

162 P. 638, 174 Cal. 198, 1917 Cal. LEXIS 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-fidelity-guaranty-co-v-pillsbury-cal-1917.

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