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(67 Colo. 359)

(185 P.)

It argues that when dependent reached the HASSELMAN et al. v. TRAVELERS' INS. age of eighteen years, to-wit: on the 10th day CO. et al. (No. 9661.) of September, 1917, her rights as a dependent ceased, under the law. After the denial of

(Supreme Court of Colorado. Nov. 3, 1919.) a petition for re-hearing the company

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Claimant, minor sister of deceased, is not a "child" within Compensation Act, § 4, providing that a right to death benefit, though fixed, shall cease when child reaches age of 18, and the fact that she became of age after the allowance was made does not nullify her right to the award in full; the word "child" referring to the specific relationship of parent and child.

[Ed. Note. For other definitions, see Words

and Phrases, First and Second Series, Child.]

En Banc.

brought this action in the district court. Answer was made by boch the Commission and the dependent, the issue being whether, by the terms of the Compensation Act, compensation should cease when the dependent became of age. The findings were for the company, and the court directed that payments cease as of September 10, 1917. That judgment is now here for review.

sister of the deceased is to be considered a The only question is whether the minor child, within the meaning of the Compensa

tion Act. Chapter 179, Session Laws 1915, contains the provisions upon which both parties rely. Subdivision f, of Section 4, designates the following classes of persons who

Error to District Court, City and County of shall be conclusively presumed to be wholly Denver; Charles C. Butler, Judge.

Proceedings for compensation for the death of Richard P. Hasselman, deceased, by Jennie A. Hasselman, opposed by the Travelers' Insurance Company, insurer, and the H. Koppers Company, employer. A rehearing was denied the insurance company, and it brought an action in the district court, where findings and judgment were in its favor. Claimant and the Industrial Commission bring error. Reversed and remanded, with directions.

S. S. Packard, of Pueblo, for plaintiff in error Hasselman.

Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen., for plaintiff in error Industrial Commission.

E. P. Steinhaure and Goudy, Twitchell & Burkhardt, all of Denver, for defendant in

error.

BAILEY, J. This was an action before the Industrial Commission by Jennie A. Hasselman, as sole dependent of her brother, Richard P. Hasselman, to secure compensation for the death of Richard, who was killed by an accident arising out of and in the course of his employment. At the time of the death of her brother, Jennie was of the age of seventeen years, six months and twenty-one days, and she became of full age of eighteen years on September 10, 1917.

The Commission awarded her compensation in the sum of $2,500.00, to be paid at the rate of $34.72 per calendar month, beginning with March 31, 1917, thus distributing the payment of compensation over a period of approximately six years.

The defendant insurance company admitted liability for compensation for only the period that the dependent remained a minor.

dependent upon a deceased employé, to-wit: 1, the widow; 2, the widower; 3, a child, or children, and as to the latter class it proceeds as follows:

"III. A child or children under the age of eighteen years, (or over said age, if physically or mentally incapacitated from earning), actually dependent upon the parent with whom he is, or they are, living at the time of the death of such parent, there being no surviving and dependent parent. *

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"V. No person shall be considered a dependent unless a member of the family of the deceased employee, or one who bears to him the relation of surviving spouse, or lineal descendant, or ancestor, or brother or sister. A child, within the meaning of this act shall include a posthumous child, and a child legally adopted prior to the injury.

"VI. Questions as to who constitute dependents, and the extent of their dependency shall be determined as of the dates as herein provided and their right to any death benefit shall become fixed as of such time, irrespective of any subsequent change in conditions, and the death benefit shall be directly payable to the dependent or dependents entitled thereto, or their legal representatives: Provided, notwithstanding, that when a right to a death benefit shall become fixed, it shall cease upon the happening of any one of the following contingencies:

"(1) Upon the marriage of the widow or wid

ower.

"(2) When a child reaches the age of eighteen

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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years, unless said child at such time is physically or mentally incapacitated from earning. "(3) Upon the death of any dependent."

When the above provisions are taken and considered together, it is obvious that the word "child" in each instance refers to and specifies the relationship of parent and child, or lineal descendant, and cannot upon any theory refer to a person who, although a minor, stands in some other dependent relationship to a deceased employee. This construction is made quite certain by paragraph V, supra, where the word "child" is expressly used to include posthumous children, and those legally adopted by the employee prior to his injury. It is manifest that a posthumous child could have no rights as dependent other than through the relationship of parent and child, and it is likewise clear that an adopted child of the deceased, otherwise unrelated, could have no rights as dependent except through such relationship. By the express provision of this paragraph it is made clear that in the use of the term "child" the legislature meant and intended to refer only to those bearing the relation of an offspring of the person injured, or of that of child by adoption.

The Act contains nothing which either directly or by necessary, or even reasonable, implication, indicating an intent upon the part of the legislature to limit compensation in general to minor dependents only. To hold that the dependent in the case at bar is not entitled to the compensation which was awarded her would in effect thus limit the application of the Act whenever it involved a minor dependent. The term "child" as used in the Act cannot be construed to mean

"minor dependent." Such a construction would deprive widows, and in fact all designated dependents, if minors, of compensation after they came of age. There is no dispute but that if the claimant had been of full age at the time of the accident she would have been entitled to the full amount awarded, payable as directed by the Commission.

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1. MASTER AND SERVANT 382 WORKMEN'S COMPENSATION; SETTLEMENT ON STIPULATION WITHOUT APPROVAL OF COMMISSION INVALID.

Under Workmen's Compensation Act of 1915, requiring Industrial Commission to be made a party to proceedings in the district court, and under section 70, requiring Commission's approval of compensation agreements, the district court has no power to render judgment on a stipulation for a settlement for a sum less than that awarded by commission, without its approval.

2. MASTER AND SERVANT 417(5)-WORKMEN'S COMPENSATION; REVIEW OF ACTS OF INDUSTRIAL COMMISSION.

Under Workmen's Compensation Act of 1915, district court has power to set aside Industrial Commission's orders only when made without jurisdiction, by usurpation of power, when procured by fraud, or when the findings of fact are not supported by the evidence.

En Banc.

Error to District Court, City and County of Denver; Clarence J. Morley, Judge.

Proceedings under Workmen's Compensation Act by Ray Brown for compensation for injury, opposed by the Great Western Sugar Company, employer, and the London Guarantee & Accident Company, Limited, insurer. Award of Industrial Commission for claimant, and insurer took case to district court, which entered judgment on stipulation without approval of Industrial Commission, and the Industrial Commission brings error. Reversed, with directions.

Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen. (Walter E. Schwed, of Denver, of counsel), for plaintiff in error.

Fancher Sarchet, of Ft. Collins, for defendant in error Brown.

Wm. E. Hutton and B. B. McCay, both of Denver, for defendants in error Great Western Sugar Co. and London Guarantee & Ac

Under the liberal construction to which the Act is entitled it is obvious that the fact that the claimant became of age after the allow-cident Co., Limited. ance was made cannot properly be held to nullify her right to the award in full, since, as we have already noted, there is nothing in the Act indicating a legislative intent to have compensation cease when the dependent becomes of age, except where the relation of parent and child exists between the dependent and the injured employee.

TELLER, J. Defendant in error, Ray Brown, was awarded compensation for an injury, on a hearing before the Industrial Commission.

The case was taken by the Guarantee Company to the district court, and, while pending there, Brown and the said company re-entered into a stipulation for a settlement of Brown's claim for a sum less than that awarded him by the commission.

The judgment of the district court is versed and the cause remanded, with directions to enter judgment affirming the findings and award, of the Commission.

Upon the filing of this stipulation in the Judgment reversed and cause remanded district court, objection was made by the with directions. commission to any order being entered there

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(185 P.)

on, it being insisted that the court could give judgment only after a hearing and under the limitations of the Workmen's Compensation Act. Judgment was, however, entered on the stipulation, and the commission brings the cause here for review.

in the event of his refusal to pay the same, but the action must be brought in the name of the state, by its chief legal representative, on behalf of the claimant. The situation in such an action, or in the proceeding outlined before the commission, is similar to that of one under some legal disability so far as his right to control, conduct, or dismiss the proceeding is con

The commission was made a party to the proceeding in the district court, as was re-cerned. This shows the interest of the state in quired by the statute, and, being a party there, it had the right to bring the case here for determination of the questions raised by

it.

Counsel for defendants in error urge that, as the insurance company and Brown are the only parties financially interested, they may settle the controversy, and, if such settlement is approved by the district court, it must stand.

the matter and its complete acquisition of ju-
risdiction in the premises. The jurisdiction is
continuous from the moment the application for
compensation is filed by the claimant until the
compensation is paid, and, hence neither of the
parties have a right to interfere therewith by
private arrangement. This authority of the
state, once invoked, cannot be cast aside.
"The theory of workmen's compensation is
based largely upon the doctrine that society it-
self is vitally concerned in the prompt payment
of compensation to injured and the dependents
of killed employés. It is a matter relating to
the promotion of the general welfare.
The Industrial Commission is the instrumentali-
ty through which the state acts, and it is its
duty not only to ascertain all of the facts and
determine the amount of compensation to which
a claimant is entitled, but to pursue the matter
to final judgment in the event the employer re-
fuses to pay. In other words, the state, as the
representative of society at large, steps in and
takes charge. Such being the case, it follows
that the individual claimants, not being solely

[1] This ignores a very important consideration in the case. Inasmuch as the statute provides that the commission be made a party to the proceedings in the district court, it cannot be supposed that the cause there may be conducted solely by the other parties. The commission has a function to perform in the district court, and that manifestly is to defend its award, in the interest both of the claimant and of the state. The Workmen's Compensation Act is an acknowledgment by the state of a duty to aid the the injured employés in securing compen-interested, cannot enter into a release which sation for their injuries, and to prevent the delays and miscarriage of justice which sometimes occurred in personal injury actions in the courts. As has been frequently pointed out, the state has an interest in the recovery of just compensation by injured employés to the end that they do not, because of their injuries, become public charges. Rosensteel

v. Niles F. & M. Co., 7 Neg. & Comp. Cas. 798; Gerber v. Central Council of Stockton,

2 Cal. Ind. Acc. Com. 554; Dettloff v. Hammond Standish & Co., 195 Mich. 117, 161 N. W. 919. It is that fact which induced the lawmakers to give to such commissions the power to approve settlements as a condition of their becoming. binding on the parties to

them.

In Rosensteel v. Niles Forge & Mfg. Co., supra, the Ohio Industrial Commission held that the proceeding before the Industrial Commission is not a civil action, and does not partake of the nature of such action. The commission said:

will be binding without the consent of the state through the action of the Industrial Commis

sion."

made a like ruling, holding that when a The Illinois Industrial Commission has claim has once been made no settlement of it will be binding unless approved by the Industrial Commission. McClellan v. Allith Prouty Co., Ill. Ind. Bd. Dec. 31, 1914.

The California law is to the same effect as ours, making it necessary to file an agreement of settlement with the commnission and have it approved by that body. In Mass Bonding Co. v. Industrial Commission, 176 Cal. 488, 168 Pac. 1050, the Supreme Court held that without such approval an agreement for settlement was void.

The statutes of the states mentioned are no stronger for the protection of the employé than is our own.

Section 70 of the Workmen's Compensation Act of 1915 (chapter 179), after providing for the submission to the commission of disputes concerning compensation under the act, provides that:

"When the injured employé, or his dependent in the event of his death, elect to take compensation, as in the claim now under consideration, the protection of the statute is thrown about "If the injured employé or his dependents, and him. The moment he files his proceeding with the employer or his insurer reach an agreement the Industrial Commission the state has a di- in regard to compensation under this act, a rect interest in the proceeding. It assumes ju- memorandum of the agreement shall be filed risdiction and, unlike in a civil action in the with the commission, and, if approved by it, courts the claimant has not thereafter the right thereupon the memorandum for all purposes, to settle or compromise his claim without the shall be enforceable as are all the awards of the consent of the commission. This is evidenced commission. All such agreements shall be apby the fact that after the amount of compensa- proved by the commission. Such approval shall tion has been determined by the commission be given by the commission only when the terms the employé himself cannot sue the employer thereof conform to the provisions of this act."

Under this statute a settlement made on stipulation in court is no more effective without the approval of the commission than is any other settlement.

[2] It is further urged by the commission, and with force, that the district court's powers on an appeal are limited to those named in the statute. We have several times held that the findings of the commission are binding unless set aside for one or

more of the reasons named in the statute.

The policy of the law, clearly disclosed in its provisions, is to give the district court power to set aside the commission's orders only when made without jurisdiction, by the usurpation of power, or when procured by fraud, or when the findings of fact are not supported by the evidence.

answers and cross-complaint. From an adverse judgment, Walpole prosecutes writ of error, and applies for supersedeas. Reversed and remanded.

This was an action for the foreclosure of a so-called deed of trust, made to the public trustee of Fremont county, Colo., to secure bonds issued by the Park Center Land & Water Company, upon default of certain payments provided for therein. Blake Rogers, the then public trustee, brought the action as provided by the terms of the trust deed itself. This trust deed further provided that property therein mentioned might be released upon certain specified conditions. Before judgment N. S. Walpole, claiming to be the owner of $5,000 of the bonds secured by the trust deed, was upon his motion, and without objection, made a party to the action, and thereafter filed herein his answer and cross-complaint, alleging that certain lands had been released by the trustee without authority and contrary to the terms of the trust deed, and his security thereby enWe are therefore of the opinion that the dangered. To this answer and cross-comaward by the district court, on the stipula-plaint was appended a list of the lands so altion, violated not only the spirit, but the ex-leged to have been released, together with press provision of the law.

It may well be that the employé's rights would be fully protected by the district courts, but the lawmakers have seen fit to commit to the Industrial Commission that important duty. We have merely to apply

the law as we find it.

It is accordingly ordered that the district court set aside the judgment and proceed with the cause as provided by the statute. Judgment reversed.

(66 Colo. 583)

WALPOLE v. ROGERS, Public Trustee, et al. (No. 9674.)

(Supreme Court of Colorado. Nov. 3, 1919.)

1. CORPORATIONS 482(2)-FORECLOSURE OF TRUST DEED TO PUBLIC TRUSTEE.

the names of the owners thereof; and the said Walpole prayed that such owners be made parties defendant. Thereafter motion

was filed to strike said answer and crosscomplaint and discharge said Walpole as a defendant, which motion was sustained. From this judgment said Walpole prosecutes this writ of error, and the cause is now before us on his application for supersedeas. John H. Voorhees, of Pueblo, for plaintiff in error.

D. W. Ross and James T. Locke, both of Canon City, for defendants in error.

BURKE, J. (after stating the facts as above). [1] It is contended by plaintiff in error that the so-called deed of trust here in

A trust deed to the public trustee of a county to secure bonds of a land and water company held foreclosable according to its terms, and not to require a foreclosure proceeding ing, as if a mortgage or trust deed given to a private trustee.

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Department 1.

question is a mortgage, and, notwithstandits express terms, must be foreclosed in all respects as such, and as though some other person than the public trustee had been named as trustee therein.

With this contention we are unable to agree. We see no reason why the instrument may not be foreclosed according to its

terms.

[2] Plaintiff in error further contends that the action of the trial court, in striking out his answer and cross-complaint and dismissing him as a party, was prejudicial error.

If the facts alleged in his cross-complaint, as to the wrongful release by the trustee of a considerable portion of the property cov

Error to District Court, Fremont County; ered by the deed of trust, be true, then as James L. Cooper, Judge.

Action by Blake Rogers, as Public Trustee in and for Fremont County, Colo., in which N. S. Walpole was made a party, and filed

an owner and holder of bonds of the water company his securities have been wrongfully dissipated. Hence he is entitled to appear herein, and have the owners of such prop

(185 P.)

erties made defendants, and to a hearing of carrier. An agent of the plaintiff delivered his allegations with respect thereto.

the dog, in a crate, to the defendant at St. George, S. C., on April 16, 1917, for carriage to Denver, Colo. Posted on the crate was a "Notice to messengers," in which the following instruction appeared. "Exercise at least

The judgment is accordingly reversed, and the cause remanded for further proceedings in harmony with the views herein expressed. GARRIGUES, C. J., and TELLER, J., con- once each day while en route." On April 19,

cur.

(66 Colo. 591)

1917, while still in transit, the dog died. A witness for the defendant testified that

"The dog died of acute peritonitis caused by ruptured bladder due to retention of urine ac

SOUTHERN EXPRESS CO. v. MCCLELLAN. count dog being house-broke would not void in

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crate."

The evidence fairly shows that the instruction on the crate was not at any time complied with by the carrier, and that at no time was the dog taken out of the crate. There

CARRIERS 211-CARRIAGE OF DOG; DIS-
OBEDIENCE OF SHIPPING INSTRUCTION TO is evidence supporting the conclusion that the

EXERCISE.

dog's death would not have occurred if the Interstate express carrier is liable for death instruction had been complied with; that the of dog shipped in crate, resulting from disobedi-dog would void the bladder if taken out of ence of shipping instruction to exercise it once the crate, but not while confined in the crate; a day; the instruction not calling for a special and that, having been thus confined constantservice forbidden by Interstate Commerce Commission rules, and duty to render service neces-ly, in disobedience of the instruction, the resary to proper care of live stock in transit and sult was that the animal contracted acute to follow shipping directions not being affected peritonitis, resulting in its death. by inability of carrier to make a charge for a service unless provided for in published tariffs and classifications.

Department 3.

Error to County Court, City and County of Denver; Ira C. Rothgerber, Judge.

Action by Heard McClellan against the Southern Express Company. Judgment for plaintiff, and defendant brings error. firmed.

Af

The defendant contends that the shipper's direction called for a special service, expressly forbidden by the rules of the Interstate Commerce Commission, and that therefore the defendant could not, and was not required to, comply with such direction.

In our opinion, the instruction in question did not demand a special service. It called for nothing more than certain care of the animal while in transit, and no unreasonable degree of attention or service was necessary in order to obey the instruction. No statute nor regulation has been pointed out which relieves the defendant, as a common carrier, of the usual responsibility of caring for aniQuaintance, King & Quaintance, of Den-mals, delivered to it for transportation, while ver, for defendant in error.

William W. Garwood, Omar E. Garwood, and George O. Marrs, all of Denver,, for plaintiff in error.

ALLEN, J. This is an action, instituted in a justice court without pleadings, wherein the plaintiff seeks to recover damages against the defendant, a common carrier, for the loss of a dog which had been delivered to the defendant for transportation. The cause was appealed to, and tried in, the county court, where a judgment was rendered in favor of the plaintiff. The defendant brings error. The ultimate question presented for our determination, upon this review, is whether or not there is sufficient evidence under which the defendant may be held liable for the loss of the animal in question.

the same are in transit. The fact that the carrier could not make a charge for a service, unless such charge is provided for in the published tariffs and classifications, does not affect the existence of the duty to render such service as is necessary to the proper care of live stock in transit. We find nothing in the record to take this case out of the rule which makes it the duty of a carrier to follow shipping directions. 10 C. J. 81, § 83.

The evidence is sufficient to support the judgment, and the judgment is therefore affirmed.

Affirmed.

GARRIGUES, C. J., and BAILEY, J., con

The defendant is an interstate express cur.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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