I am unable to concur in the foregoing opinion. I think the trial court was in error in refusing to grant the appellant leave to amend its pleadings, and that this court is in error in affirming its ruling in that respect.
There is some reason for refusing to allow an ordinary litigant, who, from the nature of things, should know the merits of the controversy before he enters upon a trial thereof, to introduce a new element of controversy during the course of the trial; yet an examination of our cases will show that our rule is liberal, even in such a situation. But, in my opinion, the rule should not be applied in controversies of this sort. The department of labor and industries is not an ordinary litigant. It is the administrator of a trust fund; a fund contributed by the industries of the state for the purpose of compensating workmen injured in the industries, and this, without regard to the question whether the injury was the result of fault of the workman or fault of the employer. The work of administering the fund has reached vast proportions. Huge sums are collected and disbursed annually. The claimants are many, and the claims vary in size from the minimum to the maximum allowed by the law. It is not strange, therefore, that the officers of the state administering the fund will occasionally make a mistake, and will recognize at one stage of the proceedings the validity of a claim which further inquiry shall prove unfounded. When it does find, before the case is finally closed, that it has made a mistake in recognizing the validity of a *Page 61 claim, no mere rule of procedure should, in my opinion, prevent a correction of the mistake.
Another reason is that the industries contributing to the fund must trust entirely to the state officers for its due administration. While they are the sufferers from its mal-administration, they have no voice, at least no more than a persuasive voice, in its administration. Justice to them requires that no one be permitted to share in the fund who is not justly entitled to share therein. For the court to allow a claimant not justly entitled to share in the fund to share therein, because of the mistake of the officers administering the fund, regardless of the merits of the claim, is, I think, to work a wrong on the contributors to the fund; it is to visit upon the innocent a fault chargeable to the state.
I think, furthermore, that the very act creating the fund requires a ruling contrary to that announced by the majority. It will be remembered that the department administering the fund refused to allow the claim of the claimant, and that the proceeding in the superior court was a proceeding to review the order of the department. The section of the act permitting such a review, (Laws of 1911, p. 368, § 20) [Rem. Comp. Stat., § 7697] while providing that the proceedings in review shall be informal and summary, expressly provides that "full opportunity to be heard shall be had before judgment is pronounced." This quoted clause applies to the department as well as to the claimant, and, in my opinion, permits it to show that its conclusion is right, notwithstanding in so doing it controverts an asserted fact necessary to a recovery which it had theretofore conceded to be correct.
I think there should be a new trial, in which the department should be permitted to introduce any evidence it has tending to show that the claimant has no just *Page 62 claim against the fund. On the merits of the claim, I express no opinion.