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building. The claimant, was employed at a fixed rate per day, but his contract was one of employment for the entire job, which was fixed and limited in its amount and in the description of the work which claimant was to do. It is not reasonably possible to set forth a hard and fast definition of casual employment, whereby every case may be determined like a mathematical problem. It is our opinion that the award made by the commission is based upon a correct application of the statute to the facts of this case. The award is affirmed.

We concur: James, J.; Works, Judge pro tem.

DISTRICT COURT OF APPEAL OF CALIFORNIA.
SECOND DISTRICT.

STANSBURY

ข.

INDUSTRIAL ACC. COMMISSION OF CALIFORNIA Et al.
(Civ. 2446.)*

WORKMEN'S COMPENSATION-"COURSE OF EMPLOYMENT." An employee injured while repairing a clamshell dredge which his employer intended to sell was not injured in the course of his employer's business of leasing road-making machines.

Original application by Charles Stansbury for a writ of review to annul an award to W. J. Husong under the Workmen's Compensation Act, made by the Industrial Accident Commission of the State of California. Award annulled.

Hocker & Austin, of Los Angeles, for petitioner.

Christopher M. Bradley, of San Francisco, for respondents.

WORKS, Judge pro tem. The respondent Industrial Accident Commission allowed compensation to W. J. Husong for an injury received while he was in the employ of petitioner, and petitioner now asks that the award be annulled. It is conceded that the employment was casual. It is also contended by petitioner that the injury did not occur in the usual course of his business. The commission found that petitioner "was in the business of leasing certain road-making machinery and outfit, and that it was necessary and in the usual course of said business to keep the said machinery and outfit in repair; that the work and employment of the applicant at the time of his injury was the repairing of such *Decision rendered, Jan. 26, 1918. 171 Pac. Rep. 698.

machinery, and was therefore in the usual course of the business of the employer."

The finding that petitioner was engaged in the business of leasing road-making machinery and outfit is amply supported by the evidence, but the finding that the applicant was injured while making repairs on machinery used in that business finds no support whatever in it. In addition to the machinery used in the business, the petitioner had in his possession a certain clamshell dredge, which he had acquired from a contractor who had been using it in harbor work. It was in no sense road-making machinery or equipment. This dredge petitioner was about to lease to another, with an option to purchase the same, but some repairs were necessary upon it before it could go out. The applicant for compensation was employed to make these repairs, and was injured while prosecuting the labor. The work being performed by the applicant was no more nearly in the course of the employer's business of leasing road-making machinery than if it had been the work of shoeing a horse or repairing a mowing machine owned by the employer. The case is directly within the rule laid down in Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 Pac. 1031. The award is annulled.

We concur: Conrey, P. J.; James, J.

DISTRICT COURT OF APPEAL OF CALIFORNIA.
THIRD DISTRICT.

NEAL

V.

INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA. (Civ. 1817.)*

WORKMEN'S COMPENSATION ACT-CERTIORARI-TIME FOR FILING.

Where order of Industrial Commission denying petition for rehearing was made and entered December 22d, an application for certiorari to appellate court to review such order, filed by the clerk January 24th following, came too late, and writ will be denied, in view of Workmen's Compensation Insurance and Safety Act § 67a, providing that within 30 days after the application for a rehearing is denied any party affected may apply to the Supreme Court or District Court of Appeal for writ of certiorari or review, for the purpose of having the lawfulness of the rehearing inquired into and determined.

*Decision rendered, Jan. 24, 1918. 171 Pac. Rep. 696.

Application by E. E. Neal for a writ of certiorari against the Industrial Accident Commission of the State of California. Denied. E. E. Neal, in pro. per.

PER CURIAM. The petitioner in the above-entitled case seeks a writ of certiorari to review the proceedings wherein on his application to the respondent above named for a rehearing, his petition was denied. It appears from the petition herein that the order denying the rehearing of which petitioner makes complaint was made and entered December 22, 1917. Section 67a of the Workmen's Compensation Insurance and Safety Act of 1917 (Stats. 1917, p. 875) provides that:

"Within thirty days after the application for a rehearing is denied, or, if the application is granted, within thirty days after the rendition of the decision on the rehearing, any party affected thereby may apply to the Supreme Court of this state, or to the District Court of Appeal of the appellate district in which such person resides, for a writ of certiorari or review, * for the purpose of having the lawfulness of the original order, rule, regulation, decision or award, or the order, rule, regulation, decision or award, on rehearing inquired into and determined."

* *

The petition was received at the office of the clerk of this court and was filed on January 24, 1918. The application for the writ comes too late, and the writ is therefore denied.

SUPREME COURT OF COLORADO.

PASSINI

V.

INDUSTRIAL COMMISSION OF COLORADO et al. (No. 9294.)*

1. WORKMEN'S COMPENSATION-CONCLUSIVENESS OF AWARD.

Under Laws 1915, c. 179, § 83, making workmen's compensation awards reviewable only as to question of law, an award is conclusive upon all matters of fact properly in dispute before the commission, where supported by evidence or reasonable inferences to be drawn therefrom. 2. WORKMEN'S COMPENSATION-APPEAL.

A workmen's compensation hearing, held pursuant to the claimant's application for a rehearing, at which the commission considered new, as well as old, issues, was equivalent to a new trial, so as to preclude an appeal to the district court prior to a rehearing application, in view of Workmen's Compensation Act, § 77, prohibiting actions to set aside awards until after a rehearing application to the commission.

Decision rendered, March 4, 1918. 171 Pac. Rep. 369.

En Banc.

Error to District Court, City and County of Denver; John I. Mullins, Judge.

Workmen's compensation proceedings by Pietro Passini against the American Smelting & Refining Company. From an award by the Industrial Commission, the claimant appealed to the district court, and from a judgment sustaining a demurrer to his complaint, he brings error. Affirmed.

George Allan Smith, of Denver, for plaintiff in error.

Henry A. Dubbs and Henry C. Vidal, both of Denver, for defendant in error American Smelting & Refining Co.

Leslie E. Hubbard, Atty. Gen., and John L. Schweigert, Asst. Att. Gen, for defendant in error Industrial Commission.

BAILEY, J. This case is here on writ of error to review a judgment of the district court sustaining a demurrer to the complaint in an appeal from the findings of the State Industrial Commission.

The claimant was injured in May, 1916, by falling from a platform. From the time of the injury until the hearing before the Commission he had received compensation from, and had been cared for and received medical attention through the defendant, the American Smelting & Refining Company, in whose employment he was when injured. On December 8th, 1916, he was awarded compensation to January 5th, 1917, by the Commission. At that time his injuries were found to consist of a bruised shoulder, and traumatic neurosis, which latter was held to be the proximate result of the accident. On February 16th, 1917, the case was reopened by the Commission, for the purpose of determining the extent of other alleged disabilities. The defendant company denied further liability, but expressed willingness to provide additional treatment. It was thereupon ordered by the Commission that if claimant would subject himself to medical and hospital treatment he should be awarded compensation from and after January 5th, 1917. But should he fail and refuse to avail himself of the proposed treatment, that the original order, denying compensation after such date should stand.

On April 7th, 1917, he filed a petition for rehearing, which was denied. On May 19th he filed another petition for rehearing, which was granted, and on June 11th, after what was to all intents and purposes a primary or original trial, the Commission set aside the February award and affirmed the award of December 8th. Without applying for a new trial he brought action in the district court, where his complaint was dismissed on demurrer, and the findings and award of the Commission sustained.

[1] In considering questions arising out of the sufficiency of the evidence which supports the award, it must be borne in mind that the court is expressly bound by statute. Section 83, chapter 179, Laws 1915, is as follows:

"The Commission or any party who may consider himself aggrieved by a judgment entered upon a review of any such

finding, or award, may have questions of law only reviewed * * * by the supreme court."

This court may consider only the legal question of whether there is evidence to support the findings, and not whether the Commission has misconstrued its probative effect. The award is conclusive upon all matters of fact properly in dispute before the Commission, where supported by evidence, or reasonable inference to be drawn therefrom. Papinaw v. Grand Trunk Ry. Co., 189 Mich, 441, 155 N. W. 545; Redfield v. Michigan Ins. Co., 183 Mich. 633, 150 N. W. 362; William Rahr Co. v. Industrial Com. (Wis.) 163 N. W. 646; In re Von Ette, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D, 641; Oniji v. Studebaker Corp. (Mich.) 163 N. W. 23; Honnold on Workmen's Compensation, § 242.

[2] So far as the merits of the case are concerned, there is nothing in the record upon which the findings of the Commission may be properly set aside. It appears, however, that the district court sustained the demurrer to the complaint on the ground. that claimant failed to follow the statute in perfecting his appeal. The first finding and award, that of December 8th, 1916, provided for compensation to January 5th, 1917, and by it the commission in effect found that claimant was disabled and that he probably would remain so until that date. It is urged that the commission had no power thus arbitrarily to fix the date of the recovery of the claimant, but we are not called upon to pass upon this question, for the reason that the case was reopened, presumably for the very purpose of ascertaining whether there was a change in claimant's condition. After the hearing of February 16th it was ordered that claimant receive hospital treatment tendered by the defendant company, and "if not accepted by the claimant shall be in full discharge of all liability of the respondent." On June 11th a new finding and award was made and entered, setting aside the February award and affirming that of December 8th.

At the hearing upon which the award of June 11th is based, entirely new issues as well as the old ones were before the Commission, and full consideration was given to both. That hearing can in no sense be considered a mere review of former findings. More testimony was taken than at any previous hearing, some of which related to an entirely new malady, alleged to have recently developed as a result of the accident, and the proceedings were, as stated above, practically a new trial. Upon all of the issues new and old the findings were adverse to the claimant. The district court was therefore without jurisdiction to review the actions of the Commission until the claimant had first petitioned it for a rehearing, as provided by section 69 of the act. Failure to petition for a rehearing brings the claimant within. section 77, which provides:

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