CALLISTER, Chief Justice:
Plaintiff, a minor, through his guardian ad litem, initiated an action in the district court to recover damages for the injuries he sustained when he fell from the rear of a pickup truck being operated by the defendant, Melvin J. Romney. The initial complaint alleged negligence and wilful misconduct on the part of Romney in allowing said 14-year-old minor to ride in the rear of the truck as well as in his manner of operating the vehicle. Subsequent[187]*187ly, plaintiff filed a motion to join Calavo Growers of California as an additional defendant; and, upon the granting of this motion, plaintiff filed an amended complaint, wherein he alleged that at all times mentioned in the complaint Romney was an agent of Calavo and was acting within the course and scope of his employment, and that plaintiff was in the employ of Calavo and was acting in the course and scope of his employment at the time he was thrown from the truck. In a second cause of action plaintiff alleged that he was an employee of Romney, with the remainder of the pleading similar to the first cause of action. In response thereto, defendants filed motions to dismiss, wherein they cited Section 35-1-60, U.C.A.1953, which provides that Workmen’s Compensation shall be the exclusive remedy against any employer or against an agent or employee of the employer for injuries sustained by an employee. The motions were accompanied by affidavits, which indicated that the corporate defendant had in effect at the time of the incident a valid and subsisting Workmen’s Compensation policy of insurance. Based on the foregoing, the trial court dismissed plaintiff’s action with prejudice.
Thereafter plaintiff filed a claim with the \ Industrial Commission for workmen’s compensation. The claim was opposed on the ground., .that it had been .filed, .more than three years after the accident or from the date of the last payment of compensation, Section 35-1-99, U.C.A.1953. The claimant urged that his employers were es-topped to assert Section 35-1-99 or in the alternative the payments he received from the insurer of Romney’s vehicle constituted “payment of compensation” within the meaning of the statute. The matter was heard by a hearing examiner, who denied the claim on the ground that it was- filed more than three years after the accident or date of last payment of compensation. Upon a motion for review before the Industrial Commission, the order of the hearing examiner was affirmed.
Both an appeal from the judgment of the trial court and a petition of review of the order of the Industrial Commission are consolidated herein.
On June 1, 1967, Donald Romney, the son of defendant Melvin Romney, invited plaintiff and another friend to go to Growers Market the next day to assist in sorting coconuts. Plaintiff’s father made arrangements to drive the boys to the market and Mr. Romney agreed to take them home. On June 2, 1967, the boys devoted their time to sorting coconuts; then they loaded certain distressed rose bushes onto the bed of Mr. Romney’s pickup truck. The boys rode in the back with the bushes. As Mr. Romney drove along the freeway plaintiff fell from the moving vehicle and sustained injuries. [188]*188The boys received money from a petty cash fund provided by Calavo to Mr. Romney, who is the district manager of the corporate defendant.
Since the motions to dismiss were joined with matters outside of the pleadings, the court treated the motions as ones for summary judgment, Rule 12(b), U.R.C.P. Plaintiff urges that the trial court erred since there were genuine issues in dispute as to certain material facts; namely, whether Romney was an independent contractor or an employee or agent of Calavo; whether plaintiff was an employee of Cala-vo or of Romney in his status as an independent contractor. Plaintiff contends that if he were an employee of independent contractor Romney, he would be entitled to maintain the instant action by reason of Section 35-1-57, U.C.A.1953, because Romney had not complied with Section 35-1-46, U.C.A.1953, the statutory methods of securing workmen’s compensation for injured employees.
Rule 56(e), U.R.C.P., provides :
. . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Plaintiff filed two. counteraffidavits. One, by plaintiff’s mother, stated that shortly after the accident she had a conversation with defendant Romney, who informed her that there was no workmen’s compensation which would compensate plaintiff for his injuries. The other affidavit, by plaintiff’s attorney, stated that prior to his filing the amended complaint he had contacted the policy clerk of the Industrial Commission, and that she had informed him that she had no record of a filing by Calavo or Romney in accordance with the Workmen’s Compensation Act.
There is nothing in the record to indicate that plaintiff directed the court’s attention to the allegedly disputed issues. Plaintiff did not by affidavit or otherwise provide the court with any facts which he now contends are in issue.
Plaintiff further asserts that defendant Romney waived his right to assert the defense that Workmen’s Compensation was plaintiff’s exclusive remedy because he had not so pleaded in his answers to the complaint and amended complaint, Rule 8(c) and (d), U.R.C.P.
Plaintiff did not assert any ground for recovery based on the employer-employee relationship in his initial complaint. [189]*189In response to the amended complaint, defendant pleaded that plaintiff had failed to state a claim upon which relief could he granted, the ground upon which in combination with an affidavit, the trial court awarded judgment. Furthermore, there is nothing in the record to indicate that plaintiff asserted before the trial court this alleged waiver.
The judgment of the trial court is affirmed.
Claimant filed his application for compensation with the Industrial Commission on December 18, 1970, which was more than three years from the date of the accident or date of last payment of compensation. The hearing examiner concluded as a matter of law that the Industrial Commission was without jurisdiction to hear the claim or grant relief thereunder by virtue of the claim having been untimely filed, Section 35-1-99, U.C.A.1953.
On review applicant asserts that there was no evidence to support the hearing examiner’s finding that at no time since the accident had Calavo, or any representative of Calavo, paid any amount to applicant by way of compensation on behalf of Calavo. The examiner found that Romney’s personal insurance carrier, State Farm Mutual, negotiated a settlement for the injuries applicant had sustained and paid certain medical benefits.
Applicant contends that the medical benefits constituted “payment of compensation” within the provisions of Section 35-1-99, U.C.A.1953; and, therefore, his claim was timely filed.
Section 35-1-44(6) provides:
“Compensation” shall mean the payments and benefits provided for in this title.
Section 35-1-46, U.C.A.1953, provides the three alternative methods by which an employer must secure compensation.
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CALLISTER, Chief Justice:
Plaintiff, a minor, through his guardian ad litem, initiated an action in the district court to recover damages for the injuries he sustained when he fell from the rear of a pickup truck being operated by the defendant, Melvin J. Romney. The initial complaint alleged negligence and wilful misconduct on the part of Romney in allowing said 14-year-old minor to ride in the rear of the truck as well as in his manner of operating the vehicle. Subsequent[187]*187ly, plaintiff filed a motion to join Calavo Growers of California as an additional defendant; and, upon the granting of this motion, plaintiff filed an amended complaint, wherein he alleged that at all times mentioned in the complaint Romney was an agent of Calavo and was acting within the course and scope of his employment, and that plaintiff was in the employ of Calavo and was acting in the course and scope of his employment at the time he was thrown from the truck. In a second cause of action plaintiff alleged that he was an employee of Romney, with the remainder of the pleading similar to the first cause of action. In response thereto, defendants filed motions to dismiss, wherein they cited Section 35-1-60, U.C.A.1953, which provides that Workmen’s Compensation shall be the exclusive remedy against any employer or against an agent or employee of the employer for injuries sustained by an employee. The motions were accompanied by affidavits, which indicated that the corporate defendant had in effect at the time of the incident a valid and subsisting Workmen’s Compensation policy of insurance. Based on the foregoing, the trial court dismissed plaintiff’s action with prejudice.
Thereafter plaintiff filed a claim with the \ Industrial Commission for workmen’s compensation. The claim was opposed on the ground., .that it had been .filed, .more than three years after the accident or from the date of the last payment of compensation, Section 35-1-99, U.C.A.1953. The claimant urged that his employers were es-topped to assert Section 35-1-99 or in the alternative the payments he received from the insurer of Romney’s vehicle constituted “payment of compensation” within the meaning of the statute. The matter was heard by a hearing examiner, who denied the claim on the ground that it was- filed more than three years after the accident or date of last payment of compensation. Upon a motion for review before the Industrial Commission, the order of the hearing examiner was affirmed.
Both an appeal from the judgment of the trial court and a petition of review of the order of the Industrial Commission are consolidated herein.
On June 1, 1967, Donald Romney, the son of defendant Melvin Romney, invited plaintiff and another friend to go to Growers Market the next day to assist in sorting coconuts. Plaintiff’s father made arrangements to drive the boys to the market and Mr. Romney agreed to take them home. On June 2, 1967, the boys devoted their time to sorting coconuts; then they loaded certain distressed rose bushes onto the bed of Mr. Romney’s pickup truck. The boys rode in the back with the bushes. As Mr. Romney drove along the freeway plaintiff fell from the moving vehicle and sustained injuries. [188]*188The boys received money from a petty cash fund provided by Calavo to Mr. Romney, who is the district manager of the corporate defendant.
Since the motions to dismiss were joined with matters outside of the pleadings, the court treated the motions as ones for summary judgment, Rule 12(b), U.R.C.P. Plaintiff urges that the trial court erred since there were genuine issues in dispute as to certain material facts; namely, whether Romney was an independent contractor or an employee or agent of Calavo; whether plaintiff was an employee of Cala-vo or of Romney in his status as an independent contractor. Plaintiff contends that if he were an employee of independent contractor Romney, he would be entitled to maintain the instant action by reason of Section 35-1-57, U.C.A.1953, because Romney had not complied with Section 35-1-46, U.C.A.1953, the statutory methods of securing workmen’s compensation for injured employees.
Rule 56(e), U.R.C.P., provides :
. . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Plaintiff filed two. counteraffidavits. One, by plaintiff’s mother, stated that shortly after the accident she had a conversation with defendant Romney, who informed her that there was no workmen’s compensation which would compensate plaintiff for his injuries. The other affidavit, by plaintiff’s attorney, stated that prior to his filing the amended complaint he had contacted the policy clerk of the Industrial Commission, and that she had informed him that she had no record of a filing by Calavo or Romney in accordance with the Workmen’s Compensation Act.
There is nothing in the record to indicate that plaintiff directed the court’s attention to the allegedly disputed issues. Plaintiff did not by affidavit or otherwise provide the court with any facts which he now contends are in issue.
Plaintiff further asserts that defendant Romney waived his right to assert the defense that Workmen’s Compensation was plaintiff’s exclusive remedy because he had not so pleaded in his answers to the complaint and amended complaint, Rule 8(c) and (d), U.R.C.P.
Plaintiff did not assert any ground for recovery based on the employer-employee relationship in his initial complaint. [189]*189In response to the amended complaint, defendant pleaded that plaintiff had failed to state a claim upon which relief could he granted, the ground upon which in combination with an affidavit, the trial court awarded judgment. Furthermore, there is nothing in the record to indicate that plaintiff asserted before the trial court this alleged waiver.
The judgment of the trial court is affirmed.
Claimant filed his application for compensation with the Industrial Commission on December 18, 1970, which was more than three years from the date of the accident or date of last payment of compensation. The hearing examiner concluded as a matter of law that the Industrial Commission was without jurisdiction to hear the claim or grant relief thereunder by virtue of the claim having been untimely filed, Section 35-1-99, U.C.A.1953.
On review applicant asserts that there was no evidence to support the hearing examiner’s finding that at no time since the accident had Calavo, or any representative of Calavo, paid any amount to applicant by way of compensation on behalf of Calavo. The examiner found that Romney’s personal insurance carrier, State Farm Mutual, negotiated a settlement for the injuries applicant had sustained and paid certain medical benefits.
Applicant contends that the medical benefits constituted “payment of compensation” within the provisions of Section 35-1-99, U.C.A.1953; and, therefore, his claim was timely filed.
Section 35-1-44(6) provides:
“Compensation” shall mean the payments and benefits provided for in this title.
Section 35-1-46, U.C.A.1953, provides the three alternative methods by which an employer must secure compensation. Romney’s private automobile insurer does not fall within the purview of this statute. Furthermore, there is not a scintilla of evidence to indicate State Farm represented Calavo to pay benefits on its behalf. Romney testified that his truck was his private vehicle, which he used as transportation to and from work; State Farm was the insurer of this vehicle. The examiner’s finding was supported by substantial, competent evidence.
Claimant further asserts that defendants were estopped to assert the three-year-limitation period by reason of their conduct which misled him.
The hearing examiner found that there was no conduct on the part of Calavo which would estop it from claiming the benefit of the limitation period of Section 35-1-99. The sole evidence to support claimant’s assertion of an estoppel was the testimony concerning Mr. Romney’s con[190]*190versation with applicant’s parents, when he purportedly informed them that there was no compensation on claimant. Mr. Romney denied this conversation.
In regard to negative findings, this court is committed to the rule that such findings will not he disturbed unless it appears that the Commission has arbitrarily or capriciously disregarded the uncontradicted evidence.1
Finally, the applicant contends that the hearing examiner erred in not ruling that the limitations period of Section 3S-1-99, U.C.A.1953, was tolled during claimant’s minority by Section 78-12-36, U.C.A.1953.
This issue was neither submitted to the hearing examiner nor to the Industrial Commission; this matter will not be considered for the first time on appeal.2
Since the findings and conclusions of the Industrial Commission are binding upon this court, if there be credible, competent evidence to support them,3 the order of the Commission is affirmed.
TUCKETT and HENRIOD, JJ., concur.
CROCKETT, J., concurs in the result.