Commission had once made an award and had denied a rehearing, its jurisdiction to alter or annul its award was exhausted, unless based upon the ground that the disability had increased, diminished, or terminated, and that when any later attempted exercise of jurisdiction was sought to be based upon this ground, it could only arise out of the proof of facts occurring after the date of its original award. The determination of this question depends upon the construction to be placed upon the several sections of the Workmen's Compensation Act relating to the power of the Commission over its awards, and the time within which these powers are to be exercised. Sections 81 and 82 of said act relate to the matter of rehearings before the Commission. Section 81 provides that persons aggrieved by any award of the Commission may apply to the Commission for a rehearing in respect to the matters determined by it of which they complain, and provides the procedure for the making, service, and hearing of said application. Section 82 provides that applications for rehearings must be made within 20 days after service of the decision of the Commission upon those claiming to be aggrieved thereby, and further proceeds to specify the grounds upon which the rehearing must be applied for within said limited time. Subdivision (b) of said section 82 reads as follows:

"Nothing contained in this section shall, however, be construed to limit the right of the Commission, at any time within two hundred forty-five weeks from the date of its award, and from time to time, after due notice and upon the application of any party interested, to review, diminish or increase, within the limits provided by this act, any compensation awarded upon the grounds that the disability of the person in whose favor such award was made has either increased or diminished or terminated."

In addition to these two sections of the act thus providing for rehearings before the Commission, section 25 of the act is in the following words:

"(d) The Commission shall have continuing jurisdiction over all its orders, decisions and awards made and entered under the provisions of sections twelve to thirty-five, inclusive, of this act and may at any time, upon notice, and after opportunity to be heard is given to the parties in interest, rescind, alter or amend any such order, decision or award made by it upon good cause appearing therefor.

*

It is the contention of the respondent to this writ that by the terms of the section last above quoted the Commission is given unlimited power over its orders, decisions and awards during the period of 245 weeks to rescind, alter or amend the same, and that the Commission, in the instant case, having concluded to amend its findings and increase its original award during such period, its power to do so cannot be questioned upon this writ. We do not so construe the powers of the Commission under the several sections of the Workmen's Compensation Act above referred to. These several sections, all referring to the powers of

the Commission over its orders, decisions and awards, must be read together, and must be so construed, if possible, as to present a harmonious system for the re-examination of matters decided by the Commission, and for the determination of the finality of such decisions. When these several sections are so read and construed together, it seems quite obvious that the provisions of subdivision (b) of section 82, which permit the Commission within the period of 245 weeks after its award to rescind, diminish or increase the same "upon grounds that the disability of the person in whose favor such award was made has either increased or diminished or terminated," contemplates a change in conditions arising after the making of the original award, and by which the disability of the person in whose favor such award was made has been either increased, diminished or terminated, and that under this subdivision of section 82 of the act the power of the Commission thus extended over the period of 245 weeks after the date of its original award is limited in its exercise to the consideration of such facts only as have arisen since the making of such award, and that it is only upon the proof of such facts that the Commission has jurisdiction to review, diminish or increase such award. When subdivision (b) of section 82 of the act is thus construed, it operates to so limit the more general terms of subdivision (d) of section 25 of said act as to permit the Commission to retain jurisdiction over its orders, decisions, and awards during the period of 245 weeks thereafter for the sole purpose of making such changes therein as may be required by the occurrence of new facts arising after the date of its original decision.

In the instant case the second award of the Commission was not predicated upon any new facts occurring since its original award, but was based solely upon a reconsideration of the facts. upon which such former award was made. We are satisfied that upon a proper construction of the foregoing sections of the Workmen's Compensation Act the jurisdiction of the Commission to alter or amend its original award expired when it denied the application for a rehearing thereon, except as these sections give to the Commission a continuing jurisdiction during a period of 245 weeks after the date of its award to alter or amend the same upon proof of facts occurring during such period, and upon such proof alone, and that no such proof having been presented as a basis for the second award of the Commission, for the annulment of which this writ was sought, it follows that in making such second award the Commission acted in excess of its jurisdiction.

The judgment of this court will therefore be as follows: As to the first writ, L. A. No. 4847, the award is affirmed. As to the second writ, L. A. No. 4929, the award is annulled.

We concur: ANGELLOTTI, C. J.; SLOSS, J.; SHAW, J.; MELVIN, J.; WILBUR, J.; VICTOR E. SHAW, Judge pro

tem.

Vol. I-Comp. 48.

SUPREME COURT OF CALIFORNIA.

SOUTHERN PAC, CO.

V.

INDUSTRIAL ACCIDENT COMMISSION ET AL. (S. F. 8418.)*

EMPLOYMENT-SUFFICIENCY OF EVIDENCE.

In proceedings under the Workmen's Compensation Act for death of employee of a rolling mill, evidence held to show that the work of employee and another, in getting suitable rock out of a car when there was none in the bin in which it was commonly stored for their use, was within the scope of his duty under his employment, as the rolling mill through its agents, had permitted that duty to be made known to him. 2. WORKMEN'S COMPENSATION-REVIEW OF AWARD BY SUPREME COURT.

The Supreme Court, in reviewing an award of the commission, is not acting as a court of appeal, and has no power to weigh the effect of positive evidence, but must assume that the commission belived all the evidence given which tends to sustain the award.

3. WORKMEN'S COMPENSATION-REVIEW

OF AWARD BY

SUPREME COURT-INCONSISTENCY IN FINDINGS. The Supreme Court. in reviewing awards of the Commission, has no power to annul award because findings are inconsistent; and, if there are findings which sustain the award, other findings inconsistent therewith, and which, if taken alone, might serve to annul it, will not be avaiable for that purpose.

4. WORKMEN'S

COMPENSATION-REVIEW OF AWARD BY

SUPREME COURT-FINDINGS.

Under Workmen's Compensation Act, § 84, authorizing the Supreme Court to annul an award of the Commission only when the commission acted without or beyond its powers, or when the award was procured by fraud, or is unreasonable, or when the findings of fact do not support it, the findings of the commission are not subject to review, except in so far as they may have been made without any evidence whatever in support.

In Bank. Proceedings under the Workmen's Compensation Act by Alice A. Hunt, for compensation for the death of William M. Hunt, the employee, opposed by the Southern Pacific Company, the employer. Compensation was awarded by the Industrial Accident Commission, and, to review the award, the employer applies for writ of review. Writ discharged, and proceeding dismissed."

Henly C. Booth and A. L. Clark, both of San Francisco, for petitioner.
C. M. Bradley, of San Francisco, for respondents.

SHAW, J. This is a proceeding to review an award of the Industrial Accident Commission allowing compensation to Alice

*Decision rendered, Jan. 30, 1918. Rehearing denied, Feb. 28, 1918. 170 Pac. Rep. 822.

A. Hunt for the death of William M. Hunt, a fireman employed by petitioner. It is claimed that the accident which caused the death of Hunt did not arise out of his employment or occur while he was engaged therein.

The petitioner was operating a rolling mill at Sacramento. In that work it was necessary to heat pieces of iron preparatory to rolling the same. This was done in a furnace, and to keep the iron in proper place for the application of the heat, rock was piled in the bottom of the furnace and the iron was placed thereon. The rock for this purpose was kept in a bin just outside the rolling mill. Adjacent to this bin, but outside of the rolling mill yard, was a railroad track, used for the purpose of carrying the rock to the bin. Between the railroad track and the bin there was a fence 51⁄2 feet high, inclosing the rolling mill yard. The duty of Hunt under his employment was to take a sufficient amount of rock out of the bin and put it into the furnace, in order that the iron might be placed on the rock while it was being heated. He was a night workman. On the night of his death he was engaged in his work, and it was found that the rock then in the bin was too small to be suitable for the purpose. A carload of rock stood upon the track outside ready for unloading into the bin. It was not usually the duty of Hunt to unload this rock into the bin, or to go outside of the yard and get the rock out of the cars. On this occasion, however, he and the other man working with him, finding no suitable rock in the bin, went upon the car and threw the rock from it into the bin, preparatory to carrying it into the furnace. While so engaged, a runaway car came down the track, collided with the car containing the rock, with the result that Hunt was thrown to the ground and killed.

The commission made findings and an award after hearing the evidence. Finding 2 states that the injury to Hunt occurred while he was "performing service growing out of and incidental" to his employment, and while he was engaged in taking rock from the car on the track adjoining the mill for the purpose of using the same in the line of his duty. Finding 3 states that it was a part of the duty of Hunt to procure the rock and place the same in the furnace as a bed therein; that it was not the usual or habitual duty of Hunt and those engaged with him to unload rock from the car into the bin or to procure rock except from the bin, or to go upon a car containing the rock and unload the same; that at the time of the injury there was not a sufficient quantity of suitable rock in the bin, and there was such rock in the car alongside, ready to be unloaded into the bin; that Hunt and his associates, to avoid delay in the work, got upon the car for the purpose of procuring suitable rock to keep the furnace going, and threw off pieces of rock there from into the bin, and that the injury occurred while he was so doing; that under similar circumstances firemen had unloaded such rock from the cars; that there was no specific rule against the same, and that under the

circumstances and in the emergency the act of Hunt in procuring rock from the car was a reasonable and proper act and was within the course of his employment.

[1] There was evidence by a witness named Merino, to the effect that for several weeks before the accident he was engaged on the premises as an employé of the petitioner, and that during that time, whenever there was not sufficient suitable rock in the bin, and there was good rock in the cars ready for unloading into the bin, it was the custom of the workmen to take the rock from the car to be placed in the furnace; that they did it right along whenever they needed big rock, and that this custom was known to the foreman in charge of the work. This clearly shows that the work of Hunt and his associate in getting suitable rock out of the car when there was none in the bin was within the scope of his duty under his employment, as the petitioner, through its agents in charge of the work, had permitted that duty to be made known to Hunt. It is amply sufficient to sustain the award of the Commission on this point.

[2-4] This court, in reviewing awards of the Commission, is not acting as a court of appeals. It has no power to weigh the effect of positive evidence. It must assume that the Commission believed all the evidence given which tends to sustain the award made. Likewise the court has no power to annul an award because the findings are inconsistent. If there are findings which sustain the award, the fact that there are other findings inconsistent therewith which, if taken alone, might serve to annul it, will not be available for that purpose. Section 84, of the Workmen's Compensation Act, which gives us the power we are now exercising over this award of the Commission, authorizes us to annul an award only when the Commission acted without or beyond its powers, or when the award was procured by fraud, or is unreasonable, or when the findings of fact do not support it. The findings are not subject to review except in so far as they may have been made without any evidence whatever in support thereof. The review of the findings, even in such cases, is not based on the theory that they are not supported by the evidence, that we are weighing evidence to determine that proposition, but upon the theory that the Commission has no jurisdiction to make a finding where there is no evidence to support it. We find no cause in the record before us which would justify an annulment of the award.

The writ is discharged and the proceeding dismissed.

We concur: ANGELLOTTI, C. J.; SLOSS, J.; LAWLER, J.