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INDEPENDENT PIER CO. v. NORTON

September 6, 1935

INDEPENDENT PIER CO. et al.
v.
NORTON Deputy Commissioner, et al. (two cases)



The opinion of the court was delivered by: DICKINSON

Leave was given to file briefs in these causes, which have now been received. There are two cases which were heard together.

The procedure is the ordinary one of a review of the orders of the commissioner. Motions were made to dismiss the bills because of some failure to comply with the technical rules of pleading enforced by the rules in equity. These motions were disposed of by granting leave to the real plaintiff to correct the formalities of his bill in the features criticized. There were practical reasons for promptly disposing of the cause on its merits.

 It was stipulated at bar that the real plaintiff should correct the formal defects in his bills and the cause be heard on the bills as thus amended and the defense that the bills should be dismissed for want of equity.

 In case No. 8807, which complains of the order made in the case originally heard by Commissioner Monahan, the objections to the order are: (1) That the commissioner was without authority of law to change the order entered by Commissioner Monahan, and that the order so made has become final, and (2) that the commissioner erred in his fact findings as to the duration of the injuries first sustained.

 It has been repeatedly ruled that the court on a review does not reweigh the evidence before the commissioner in order to substitute its own findings for those the commissioner has made. This reduces the complaint to the one of whether the succeeding commissioner could reopen the proceedings had before his predecessor. The provisions of the original act, section 22, Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1437, subsequently amended (33 U.S.C.A. § 922), provides that at any time within a year the commissioner upon his own initiative, or upon the application of any party in interest, may make a new compensation order in any case in which an order has been previously made. This would seem decisive of the question and calls for the dismissal of bill No. 8807.

 Bill No. 8809 apparently re-raises precisely the same question and calls for a like ruling.

 We do not have access to the orders made by the commissioner and may not have the correct idea of the record situation. As we understand it, however, the renewed hearing of the first order was pending when the second injury was received. There were in consequence the two proceedings before him. They were so interwoven in their facts that they were heard at the same hearings and each determined on the part of the evidence applicable to it.

 As we further understand it, the commissioner found as a fact that the workman was suffering from a total disability and entitled to the full compensation permitted by the act. As his disability was due to the combined effect of the two injuries, the commissioner determined as a fact that each employer was answerable for one-half of the total injury, and made his awards accordingly. Complaint is made that the fact conclusions reached by the commissioner were erroneous.

 We are in effect asked to review the evidence and substitute our own fact findings for those reached by the commissioner. This we are not called upon to do even if we should differ from the commissioner. More than this, the order against which bill No. 8809 is directed is an order against the Murphy Cook & Co. and not against the Independent Pier Company. It therefore follows that the latter company has no concern with this order.

 Bill No. 8807, June term, 1935, is accordingly dismissed for want of equity, and bill No. 8809, June term, 1935, is likewise dismissed for the same reason.

19350906

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