
    UTAH CONSOL. MINING CO. v. INDUSTRIAL COMMISSION OF UTAH et al.
    No. 4255.
    Decided October 6, 1925.
    (240 P. 440.)
    1. MASTER AND SERVANT — INDUSTRIAL COMMISSION MUST DISPOSE 0¶ Application eok Compensation on Merits. Under the Industrial Act (Comp. Laws 1917, § 3148), as amended by Laws 1921, c. 67, the Industrial Commission has not the power to dispose of any application for compensation pending before it, except upon the merits, unless the application is dismissed or withdrawn by applicant himself.
    
      2. Master and Servant — Review Limited to Determination Whether Industrial Commission has Exceeded Powers or Disregarded Law. The Supreme Court is limited in its powers to the determination of whether Industrial Commission has exceeded its powers or has disregarded some positive provision of law in making or denying an award.
    
    3. Master and Servant — Court Cannot Review Interlocutor!? Order Denying Motion to Dismiss Application eor Compensation. The Supreme Court in view of Industrial Act (Comp., Laws 1917, § 3148), as amended by laws 1921, c. 67, cannot, hy writ of review, bring up an interlocutory order of the Industrial Commission denying a motion to dismiss an application for compensation.
    4. Master and Servant — Only Pinal Orders oe Industrial Commission Reviewable. The Supreme Court has no jurisdiction or power to review any act of the Industrial Commission until after a final decision has been made.
    Corpus Juris-Cyc. References.
    
       Workmen’s Compensation Acts, C. J. p. 114 n. 12 New.
    
       Workmen’s Compensation Acts, C. J. p. 120 n. 15 New.
    
       Workmen’s Compensation Acts, C. J. p. 120 n. 15 New; p. 123 n. 51.
    
       Mandamus, 38 C. J. p. 680 n. 25 New; Workmen’s Compensation Acts, C. J. p. 114 n. 12 New; p. 120 n. 12, 15 New.
    Proceeding under the Industrial Act by Katie Rukavina and others for the death of Joe Sarich, opposed by the Utah Consolidated Mining Company, employer. From an order of the Industrial Commission, denying employer’s motion to dismiss claimant’s application, employer applies for writ of review.
    PROCEEDING DISMISSED AS PREMATURE.
    
      Van Cott, Biter & Farnsworth, of Salt Lake City, for plaintiff.
    
      
      Walton, Walton & Nelson, of Salt Lake City, for defendants.
    
      
      
        Industrial Gomm. v. Evans, 52 Utah, 394, 174 P. 825; Garfield Smelting Go. v. Industrial Gomm., 53 Utah, 133, 178 P. 57; Moray v. Industrial Gomm., 58 Utah, 404, 199 P. 1023; Denver & R. G. W. Ry. Go. v. Industrial Gomm., 60 Utah, 95, 206 P. 1103; Oontinental Casualty Go. v. Industrial Gomm., 61 Utah, 16, 210 P. 127; Parle Utah Min. Go. v. Industrial Gomm., 62 Utah, 421, 220 P. 389.
    
   FRICK, J.

The plaintiff in its application asks us to review a mere interlocutory order of the Industrial Commission, hereinafter called Commission. The facts necessary to a full understanding of what the plaintiff requests, briefly, are:

In 1923 one Manda Sarich made application to the Commission for compensation as the alleged widow of one Joe Sarich, who it was alleged was injured in the course of his employment while in the employ of the plaintiff herein, and who died in consequence of the injuries thus received. Upon a hearing on that application the Commission denied compensation, and the applicant made application to this court for a writ to review the decision of the Commission. Such a writ was granted, and the case was considered by this court, and the action of the Commission in denying compensation was affirmed. Sarich v. Ind. Comm., 64 Utah, 17, 227 P. 1039, 35 A. L. R. 1062. The original application was commenced under the name of Manda Sarich without joining the names, of her four minor children in the caption or title of the application. In the body of the application, however, Manda Sarich stated that she, as the wife of the deceased, and her four minor children were dependent on him, for support, and she prayed for the full amount the statute authorizes the Commission to allow in a case of death. Some time after the decision of this court was handed down- the four minor children aforesaid, by their mother, Manda Sarich, as “next friend,” made a further application to the Commission for compensation as dependents of the deceased. The plaintiff interposed a motion to dismiss the application upon the grounds that the decision of the Commission on the first application, which was affirmed by this court, was decisive of the matters presented on the second, that is, the present application; that the whole matter was res adjudicata, and that the Commission “has no jurisdiction to entertain tbe said application for compensation,” etc. In support of its motion the plaintiff introduced in evidence tbe whole record, including all tbe evidence beard and tbe proceedings bad on tbe first application. Tbe Commission, upon a consideration of tbe evidence and proceedings, rendered its decision, and, pursuant to sucb decision, made tbe following order, to wit:

“In view of the foregoing the Commission orders that the motion made by defendant for dismissal of the application of Katie, Nick, Mary, and Matilda Rukavina, filed by their next friend, Manda Sarich, on September 8, 1924, be and the same is hereby denied; and be it further ordered that the same he set for hearing, a time and place fixed, and that the parties in interest be notified at which hearing the applicants will be afforded an opportunity to establish their status as members of decedent’s family.”

In due time plaintiff filed its application for a rebearing of tbe decision, wbieb was denied. Tbe plaintiff,' by this proceeding, asks us to review tbe foregoing order or decision of tbe Commission and to annul tbe same.

We shall waive all questions respecting tbe propriety of raising tbe question of former adjudication by motion to dismiss. Tbe question, however, remains whether a party to a proceeding pending before tbe Commission may, by a writ of review in this court, assail an interlocutory order, ruling, or decision of tbe Commission before tbe Commission has made a final decision and has awarded or denied compensation as contemplated by tbe Industrial Act (Comp. Laws 1917, §§ 3061-3165).

Tbe powfers of both tbe Commission and this court are clearly pointed out in tbe Industrial Act as amended by Laws Utah 1921, p. 181, and are quite limited in their scope or extent. Tbe Statute (section 3148), as amended, reads: ‘ ‘ Tbe review ’ ’ by this court shall not extend ‘ ‘ further than to determine whether or not (1) tbe commission acted without or in excess of its powers; (2) if findings ings of fact are made, whether or not sucb findings of fact support tbe award under review.” Tbe statute further provides:

“The findings and conclusions of the Commission on questions of fact shall be conclusive and final and shall not be subject to review; such, questions of fact shall include ultimate facts and the findings and conclusions of the Commission. * * * Upon the hearing the court shall enter judgment either affirming or setting aside the award.”

It is further provided:

“The provisions of the Code of Civil Procedure of this state relating to writs of review shall, so far as applicable, and not in conflict with this act, apply to proceedings in t'he courts under the provisions of this section.”

Tbis clearly implies that tbe powers of tbis court in passing upon writs of review are limited as provided in tbe Code unless enlarged by tbe Industrial Act. Tbe statute also confers exclusive jurisdiction on tbis court to review and annul or affirm tbe decisions or awards of tbe Commission. From the foregoing, and from other language used in tbe act, it is clear that tbe Commission has not the pow'er, and it was not intended to have tbe power, to dispose of any application for compensation pending before it except upon tbe merits unless tbe application is dismissed or withdrawn by the applicant himself. In tbis connection it is pertinent to observe that we have bad frequent occasion to pass upon tbe powers of both tbe Commission in making or in denying awards and tbe powers of this court in reviewing tbe acts of tbe Commission in that regard. Tbis court has consistently and persistently held that our powers are limited to tbe determination of whether tbe Commission has exceeded ceeded its powers or has disregarded some positive provision of law in making or in denying an award. We shall refer to a few only of tbe numerous cases decided by tbis court, namely: Industrial Comm. v. Evans, 52 Utah, 394, 174 P. 825; Garfield Smelting Co. v. Industrial Comm., 53 Utah, 133, 178 P. 57; Moray v. Industrial Comm., 58 Utah, 404, 199 P. 1023; Denver & R. G. W. Ry. Co. v. Industrial Comm., 60 Utah, 95, 206 P. 1103; Continental Casualty Co. v. Industrial Comm., 61 Utah, 16, 210 P. 127; Park Utah Min. Co. v. Industrial Comm., 62 Utah, 421, 220 P. 389.

The doctrine now under consideration is clearly illustrated in Moray v. Industrial Comm., supra, in tbe fifth beadnote, which reads as follows:

“All the Supreme Court is authorized to do in a compensation case is to determine whether the Industrial Commission has exceeded its authority in disregarding the law or in making findings and conclusions not supported hy substantial legal evidence; if the Commission has not done so, the court cannot interfere, regardless of whether it does or does not agree with the Commission’s findings and conclusions.”

Recurring, now, to the plaintiff's motion to dismiss: Can it successfully be contended that if the Commission had the power to grant the motion as asked for by plaintiff it did not also have the power to deny it? Does not the mere statement of the proposition also furnish a conclusive answer? Can the answer be otherwise than in the affirmative ? In denying the motion, therefore, the Commission did not act, and in the very nature of things could not have acted, “without or in excess of its powers.” That being true, what right have we in this proceeding to review its action in refusing to dismiss the application and in making the order to proceed to a hearing on the merits? Let it be conceded, for the sake of argument, that, in view of the evidence before the Commission, it erred in its conclusion. A conclusive answer to that, however, is that this court has no power to correct the mere errors of judgment of the Commission. No doubt the Commission may misapply some provision of the statute or positive law in making or denying an award. If the Commission does so and makes an award for compensation which is contrary to law it does what is not sanctioned by the law under which it acts, and hence, as it is expressed in the statute, it acts in excess of its jurisdiction. The same result follows when it denies compensation to an applicant who as matter of law is entitled thereto-. As has frequently been pointed out by this court, in all cases where there is no dispute respecting the facts the law determines whether compensation should, or should not be allowed. It may well be, therefore, that in this case if there be no dispute respecting tbe facts a plea of former adjudication may be a good defense as a matter of law. Tbe same result may follow if as a matter of law tbe present applicants are entitled to compensation under tbe provisions of tbe Industrial Act. That, however, does not authorize a dismissal of tbe application on motion, but tbe Commission is still required to render its decision and either allow or deny compensation. Tbe decision may then be reviewed by this court as tbe final conclusion of tbe Commission upon the merits. No doubt tbe Commission, in tbe due course of investigating and passing upon an application, may be called on to rule upon various objections by tbe parties, and it may err in its rulings. Such rulings may, however, not be reviewed by this court except as an incident to tbe review of tbe final decision of tbe Commission. Tbe whole purpose, plan, and intent of tbe Industrial Act is to provide a simple- adequate and speedy means to all applicants for compensation to have their applications beard and determined upon tbe merits, and to have tbe acts of tbe Commission as speedily reviewed by this court by any interested party if be thinks that tbe Commission has exceeded its powers or has disregarded some provision of tbe statute. Mere errors of judgment, however, in arriving at a conclusion or in making or denying an awhrd are wholly immaterial except as before stated. A mere glance at tbe order of tbe Commission denying plaintiff’s motion to dismiss tbe application clearly shows that tbe act of tbe Commission was not in excess of its powers nor does it dispose of tbe application upon its merits. Plaintiff’s motion to dismiss, in legal effect, may, however, be likened to a motion for -nonsuit which is interposed by a defendant in an action and which is denied by the court where tbe court orders tbe case to proceed to final determination on tbe merits. It is needless to say that no one would seriously insist that such a ruling would be subject to review by this court. As a matter of course, such could not be done, because tbe court’s ruling, if erroneous, could be reviewed, after final judgment, by appeal. Tbe point we desire to make, however, is that such cannot be done even though there were no appeal until after judgment on the merits. For the same reason, if not for a much stronger reason, the order of the Commission denying plaintiff’s motion cannot be reviewed in this proceeding.

Nor has this court any jurisdiction or power to review any order of the Commission until after a final decision has been made. No doubt, and the statute so provides, in case the Commission should refuse to proceed to a decision,, it could be compelled to do so by writ of mandate issued by this court. If once the doors of this court are thrown open to review matters of this nature there will be no end to the orders and rulings of the Commission which .are necessarily made in the course of these proceedings that we may be called on to review. It would be just as reasonable to ask us to review a defendant’s motion to dismiss an application for compensation because, as he views it, the evidence is conclusive that he is not liable under the Industrial Act, or because the applicant w:as not in his employ at the time of the injury, or because the defendant is not within and hence not subject to the act, or because the injury did not occur in the course of the employment, etc.' All of the foregoing matters are in a sense jurisdictional as pointed out in Industrial Comm. v. Evans, supra, and hence the temptation always arises to dispose of an application by interposing a motion to dismiss the proceeding. The statute, however, clearly contemplates that no application shall be disposed of except upon the merits (unless as before suggested), and that this court can only review the Commission’s acts in making or in denying awards. In other words, the purpose of the statute is that mere errors of judgment on the part of the Commission shall not be reviewable by this court, and, further, that no review shall be had until after the final disposition of the application by the Commission. Nor can the manifest purpose of the statute be ignored by the parties by not raising the question respecting the power of this court to entertain an application like the one before us. Neither we nor the parties have the power to waive the plain purpose and intent of the statute. If the right to waive is once permitted, the whole plan and purpose of the statute will fail, and the injured employee and his dependents, for the benefit of whom the Industrial Act was conceived and passed, will again be subject to all the delays incident to litigation. Moreover, it will largely increase the number of cases that will be brought to this court on writs of review. To invite such a result would be inimical to the best interests of the employee, employer, and the public. We have already disposed of very nearly 100 cases upon writs of review issued since the law became operative in 1917. There is ample opportunity under the law for all aggrieved parties to obtain a speedy hearing and final judgment of this court after final decision by the Commission, and no good purpose could be subserved in extending the writs of review to mere interlocutory orders as attempted by this application, even if we had the power to do so.

The application in this case is premature, and therefore should be denied, and the proceeding dismissed at plaintiff’s cost. Such is the order.

GIDEON, C. J., and THURMAN, CHERRY, and STRAUP, JJ., concur.  