finding of continuing disability. But petitioner insists that since there were two separate proceedings, one instituted by Henne and the other by his widow, the court erred in consolidating them and in treating the later as a part of the earlier one.

[3] It is true that two proceedings-the one by the employee for the injury, and the other by the widow for his death-are separate ones, although the latter is supplementary to the former and allied to it by reason of the fact that the two compensable conditions, the injury and the death, arose out of the same casualty. The continuing jurisdiction given by section 25d is immaterial to the widow's application, and the order consolidating the two proceedings was a mere act of caution and without significance or effect being wholly unnecessary.

[4] The introduction in evidence of the findings and award made by the commission upon the original proceedings was not erroneous. These findings and award had the effect of a judgment binding upon the Western Indemnity Company in a matter pertinent to the inquiry regarding the cause of Henne's death. The fact that his widow and not Henne himself was the petitioner does not affect the admissibility of this evidence. But petitioner here insists that the testimony of the injured man given at the hearing on his own application was improperly admitted, and that subdivision 8 of section 1870, Code of Civil Procedure, is not any warrant for the reception of such evidence because the parties to the two proceedings differed. It is not necessary to consider this contention because Henne's testimony furnished merely the evidentiary basis for the findings of the commission in the original matter wherein Henne was himself the petitioner, and such findings and award, as we have seen, were properly admitted. Therefore it makes no difference whether or not the testimony itself was properly admissible. Its reception, in any view of the case, was harmless.

[5] Petitioner quotes and seeks to apply to the proceedings before the commission the following language from the Ehrhart Case, 172 Cal. 621-626, 158 Pac. 193, 194:—

"But the order made in this proceeding upon the second hearing was just as foreign to the original one as if the commissioners had been dealing with a different individual."

The quoted passage may not be justly so applied. We were there discussing two proceedings of which the later one referred to an alleged injury having no possible connection with the other casualty which was the only one investigated by the Industrial Accident Commission at the original hearing. We held that the statute of limitations barred the second application which related to something having no possible causal connection with the accident originally reported to and investigated by the commission. It is undenied that the site of the inflammation which caused Henne's disability was about the same as the location of the trouble which produced his death. Therefore there is no proper

Vol. I-Comp. 32.

application of the quoted passage to the proceeding which we are here reviewing. In the Ehrhart Case we were at pains to point out the rule with reference to a later disorder occurring at the same place as the earlier one and due to the same general causes, for we there said:

"Let us suppose, by way of illustration, that after Salvatore's leg had healed and he had returned to work he should have suffered with necrosis of the bone in the vicinity of the fracture, it would have been perfectly proper for the Industrial Accident Commission to have investigated the second disability and to have determined the facts from the record made at the original hearing and the evidence adduced at the later inquiry, and, if justified by those facts, to have ordered a resumption of payment of an indemnity."

And if such power exists with reference to a later development causing compensable disability, it must also inhere in the commission when the ultimate effect of the injury is the workman's death.

No other matters presented by the briefs require comment or analysis.

The writ is dismissed, and the award affirmed.

We concur: Angellotti, C. J.; Shaw, J.; Sloss, J.; Henshaw, J.; Lorigan, J.

SUPREME COURT OF CALIFORNIA.

MASSACHUSETTS BONDING & INS. CO.*

VS.

INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA ET AL. (S. F. 8329.)*

1. WORKMEN'S COMPENSATION-CERTIORARI.

An award of the commission can be annulled by a proceeding in review, if the commission exceeded its powers, if the award was procured by fraud or was unreasonable, or if the findings of fact upon which it was made do not support it; but upon no other grounds, and it cannot be set aside for errors of procedure only or for insufficiency of the evidence, if there is substantial evidence to support it, or for rulings on evidence amounting only to error and not affecting jurisdiction.

2. WORKMEN'S COMPENSATION-POWERS OF COMMISSION. The Workmen's Compensation Act empowers the Commission to adopt reasonable and proper rules of practice, and it need not follow the practice of the courts, so that notice that an award would be amended, unless good cause against it was shown within ten days, was not improper. * Decision rendered, Nov. 15, 1917. 168 Pac. Rep. 1050.

3. WORKMEN'S COMPENSATION ACTS-AWARD.

Where insurer and employer did not attack the finding of the original award that the injured person was the employee of the master, it could not on a proceeding for an amendment of the award, contend that the relationship did not exist.

4. WORKMEN'S COMPENSATION-AWARD-WAIVER OF OBJECTIONS.

Where the commission gave notice that an award would be amended in the absence of good cause shown, and the insurer appeared and objected on the ground that the relation of master and servant did not exist, its failure to object on other grounds waived them.

5. WORKMEN'S

COMPENSATION

MISSION-VALIDITY.

PROCEEDING OF COM

If it was error for the commission to serve notice that unless the employer or insurer showed good cause the award would be amended, as placing the burden of proof on the employer, such error did not vitiate the amended award.

6. WORKMEN'S COMPENSATION-TEMPORARY COMPENSATION-EFFECT.

Payment of award for temporary disability and the release thereon were no bar to the subsequent proceeding for compensation for the permanent disability caused by same injury.

7. WORKMEN'S COMPENSATION ACTS—AWARDS-VALIDITY. Under specific provisions of Workmen's Compensation Act, § 32b, a release given on payment of a temporary disability award is not valid unless approved by the commission, or unless it provides for payment of full compensation.

8. WORKMEN'S COMPENSATION ACTS—PROCEEDINGS.

Statement of a physician on which an award is founded, though not sworn to, when made a part of the application for an award, and not controverted, has the same standing as an admission of fact made by the pleadings in an ordinary action at law.

In Bank. Proceedings by J. B. Kelley for workmen's compensation, opposed by C. M. Manley and Jesse Marks, employers, and by the Massachusetts Bonding & Insurance Company, insurer. On application of the insurer for a writ of review of an award by the Industrial Accident Commission in favor of the applicant. Application denied and award affirmed.

John Ralph Wilson, of San Francisco, for Petitioner.

Christopher M. Bradley, of San Francisco (W. H. Pillsbury, of Oakland, of counsel), for Respondents.

SHAW, J.

This is an application for a writ of review of an award made by the Industrial Accident Commission in favor of J. B. Kelley, against said petitioner as insurance carrier, and C. M. Manley, and Jesse Marks, as employers of said Kelley.

Kelley was injured in May, 1914. He immediately applied to the commission for compensation, and an award was made on April 28, 1915, allowing him $472.50 as a temporary disability indemnity. This sum was paid in full on May 29, 1915, and

Kelley's receipt taken therefor. Thereafter, on January 15, 1917, Kelley applied to the commission for a permanent disability rating. under section 25d of the Workmen's Compensation Act (St. 1913, p. 293), on the ground that his injury had developed into a permanent disability, and that he was entitled to an additional allowance on that account. His application stated the facts, and had atached thereto a certificate of a surgeon describing the permanent disability. Thereupon the commission issued and served upon the petitioner herein a notice stating the fact that the physician's report accompanying Kelley's petition showed that Kelley had suffered a permanent disability equal to 18 per cent of the total disability, and that, unless good cause to the contrary be shown in writing and filed with the commission within ten days from the date of said notice, the previous finding and award would be amended so as to provide a further allowance to Kelley of $337.50. Within the ten days said company filed with the commission an answer in writing, stating that it objected to the proposed amendment, on the ground that at the time of the injury Kelley was not in the employment of Manley, whom alone it had insured, and that it was not responsible for any compensation payments whatever. It made no other objection to the proposed amendment. Thereupon the commission considered the matter, and made an award allowing said Kelley the sum of $337.50, to be paid by said insurance company, C. M. Manley, and Jesse Marks. It is this award which the petitioner here seeks to have annulled by means of a writ of review.

[1] The proceeding in review is not an appeal. The award can be annulled in such proceeding, if the commission exceeded its powers in making it, or if it was procured by fraud, or if it is unreasonable, or if the findings of facts upon which it was made do not support it, but upon no other grounds. Section 84. It cannot be set aside for errors of procedure only, or for insufficiency of the evidence, where there is substantial evidence to support the findings, or for rulings upon the admission or exclusion of evidence, amounting only to error and not affecting the jurisdiction.

[2] The petitioner claims that there was no jurisdiction to make an award, because of the fact that the notice did not state the time for hearing, but merely declared that the proposed amendment would be made unless good cause to the contrary was shown in writing within ten days. The workmen's Compensation Act empowers the commission to adopt reasonable and proper rules of practice in proceedings before it. Any notice or method of procedure which does not transgress the constitutional mandate regarding due process of law, or the provisions of the act itself, is within the power of the commission. It is not obliged to follow the methods in use in the ordinary courts of the land. The method here provided gave the parties interested an opportunity to make such objection and opposition before the commission to the proposed amendment as they desired. So far as we can per

ceive it is not open to any objection on constitutional grounds. The act provides that such awards may be amended, "if opportunity to be heard is given." This method afforded such opportunity, and does not contravene the provisions of the act in that regard.

[3] The sole objection made by the written answer of the insurance company was without merit. The original findings and award declared that Kelley was in the employment of both Manley and Marks at the time of his injury. This finding and award was not attacked by any proceeding in review, as provided in the act, and it had become final long before the new proceeding was begun. It was conclusive upon the parties with regard to their relation to the injured person.

[4] Accompanying the petition of Kelley for the permanent allowance was the doctor's certificate stating the nature of the disability. The notice to the insurance company referred to this certificate, and stated the intention of the commission to make the amendment of the award, unless good cause to the contrary was shown. The appearance of the insurance company, its objection on the ground that it was not liable at all because Manley was not the employer of Kelley, and its failure to make other objection or to offer any other proof concerning the disability stated in the physician's certificate, was a waiver of any other objection to the proceeding. The procedure adopted by the board is much less formal than that prevailing in the ordinary judicial tribunals, but that fact does not make its awards invalid.

[5] It is claimed that the notice stating that the amendment would be made unless good cause to the contrary was shown, placed the burden of proof upon the insurance company instead of upon Kelley, where it belonged. Even if this were true it would not avoid the award. It would be mere error as to the proper method of procedure. In any event the company is not injured thereby, since it did not seek any opportunity to introduce evidence upon the facts alleged against it.

It is not always necessary for a tribunal of this character, or indeed for any tribunal, to have formal evidence offered and received, in order to make an order or judgment, Here the company was fairly informed of the purpose of the commission to make the award upon the conditions stated in the notice. They were advised of the facts upon which it was to be made. In stead of offering evidence to the contrary, they submitted the case upon the facts stated. Their conduct in the matter, although not expressed by any formal writing, was substantially the same as that of one who appears in court and submits his cause upon a demurrer to the allegations of the charge against him. It was an admission of the truth of the allegations. An award made in such a manner is not, for that reason, made without jurisdiction of the cause by the tribunal making it. Nor can it be said that it was made without evidence. The admission of the parties, made by