Baldwin, State Treasurer v. Scullion

Decision Date24 November 1936
Docket Number1995
Citation50 Wyo. 508,62 P.2d 531
PartiesBALDWIN, STATE TREASURER, ET AL. v. SCULLION
CourtWyoming Supreme Court

ERROR to the District Court of Natrona County; C. D. MURANE, Judge.

Proceeding under the Workmen's Compensation Law by H. Scullion against the Texas Company, employer. To review an order for additional compensation, J. Kirk Baldwin, State Treasurer and the Texas Company bring error.

Affirmed.

For the plaintiffs in error, there was a brief by Ray E. Lee Attorney General; Thos. F. Shea, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Wm. C. Snow.

The burden of proof is upon the employee to show that the injury arose out of and in the course of his employment and that it was not due to natural causes arising outside of his employment, but was the result of an accident. Dragovich v. Iroquois Iron Co., (Ill.) 109 N.E. 999; McCoy v Screw Company, (Mich.) 147 N.W. 573; Hills v. Blair, (Mich.) 140 N.W. 243. Where the evidence is consistent with some theory other than that of employer's liability, he cannot recover. Coal Company v. Industrial Commission, 201 P. 173; Chaudier v. Lumber Company, 173 N.W. 198; Tazewell v. Commission, 143 N.E. 406; Coal Mining Company v. Industrial Commission, (Ill.) 135 N.E. 792. The right to recover must be based on something more than a mere guess. There must be some substantial evidence to support the claim. Chicago and E. R. Co. v. Kaufman, (Ill.) 133 N.E. 398; Chicago Daily News Co. v. Industrial Commission, (Calif.) 151 P. 421; Construction Company v. Industrial Commission, (Ill.) 129 N.E. 738; Consolidated Mining Company v. Salisbury, 210 P. 929. Claimant was injured July 15, 1934. Nine months after the date of the accident the employer and employee filed their reports. The statute in effect July 15, 1934, required reports of the accident to be filed within twenty days thereafter. Section 124-112, R. S. 1931, amended by Chapter 100, Session Laws 1935. No claim for an award was filed within the time required by statute. The court held that the provisions of the statute were absolute and denied the claim. Martini v. Coal Company, 38 Wyo. 172. The statute in effect at the time of the accident controls, unless it appears that an amendment was intended to have a retroactive effect. Kittleson v. Hibler, 37 Wyo. 332; Holmberg v. Oakland, (Cal.) 203 P. 167; Assurance Company v. C. & S. Ry. Co., (Colo.) 125 P. 508; Kareskis Case, (Mass.) 145 N.E. 301; State v. Company, (Minn.) 158 N.W. 715; Kossick v. Sharron Co., (Ohio) 148 N.E. 343. If the statute be given a retroactive effect, it would revive a remedy once completely barred by lapse of time. Dyer v. Belfast, (Me.) 33 A. 790; Barber v. Company, (Vt.) 135 A. 1; Eberle v. Miller, (Minn.) 212 N.W. 190; Decker v. Corp., (N. Y.) 168 N.E. 442; Smith Company v. Court, (N. J.) 150 A. 771; Stanswsky v. Industrial Commission, (Ill.) 176 N.E. 898; Rossi v. Jackson Company, (Conn.) 181 A. 539. The rights of the parties are governed by the law in force at the time the injury occurred. Sheldon v. State Dept., (Wash.) 12 P.2d 751; United Iron Works v. Smethers, (Okla.) 14 P.2d 380; Pruitt v. Company, (Texas) 40 S.W.2d 254; State v. Industrial Commission, (Ohio) 190 N.E. 407. Where the statutory limitation is jurisdictional, it cannot be waived. 37 C. J. 721, 722. Shearlock v. New York Life Assurance Company, (Mo.) 182 S.W. 89. Acts of estoppel or waiver on the part of the employer are not binding upon the state. An administrator cannot waive the statute of limitations and bind the heirs. Abbott v. Johnston, (Ark.) 195 S.W. 676; McCoy v. Morrow, (Ill.) 68 Am. Dec. 578; Stebbins v. Scott, 52 N.E. 535; McHugh v. O'Dowds Est., (Mich.) 49 N.W. 216; Fitzgerald v. First National Bank, (Nebr.) 89 N.W. 813; Miller v. Ewing, (Ohio) 67 N.E. 292. The state could not waive the statute of limitations to the prejudice of its beneficiaries, and, in fact has not done anything which can be construed into a waiver. Finn v. United States, 31 L.Ed. 128. The judgment of the district court should be reversed, with instructions to dismiss the employee's claim for compensation.

For the plaintiff in error, The Texas Company, there was a brief by Y. A. Land of Denver, Colorado, and Hagens & Wehrli of Casper, and an oral argument by G. R. Hagens.

The testimony of the expert witnesses in this case is so hopelessly conflicting, that when considered in connection with the history of the case and claimant's previous disability, due to arthritic conditions, it is impossible to say that the impairment of his ability to work is due to an injury received in the course of his employment. Neither the employer or the employee ever filed a report of the accident within twenty days after its occurrence, as required by statute. The employer did not know that such an accident had occurred until January, 1935. The employee did not file a claim within five months after the accident. This is an absolute bar to a recovery. The right to compensation, if any there was, had entirely been foreclosed before the 1935 statute was passed. The legislature could not then revive a dead right. Moreover the 1935 act was clearly not intended to operate retrospectively. The employee is conferred with no rights under the Workmen's Compensation Law, except in the manner therein prescribed. Like the mechanic or materialman, he can acquire a lien by signing and filing the statutory verified notice, but he has no lien until that is done. Peters v. Dona, (Wyo.) 54 P.2d 817. We agree with the attorney general in his contention that the State of Wyoming is the real party in interest in this case. It is the trustee of a fund created, replenished and preserved for specific purposes. We believe that the state does not have the power to waive a statute of limitations or to waive a statute which is a condition precedent to the creation of a right or liability against it, but even if it could waive the statute, it has committed no act in this case which can be construed as a waiver. For the foregoing reasons, as well as all of the reasons cited in the brief of the attorney general in this case, we believe that the district court erred in entering an award in this case and that the judgment and order of the district court should be reversed.

For the defendant in error, there was a brief and oral argument by Harold I. Bacheller and William B. Cobb of Casper.

Where the evidence is conflicting, the judgment of the lower court will not be disturbed. Standard Oil Company of Indiana v. Sullivan, (Wyo.) 237 P. 253. It was not definitely determined that claimant had an injury until January, 1935. The statute, Sec. 124-112, R. S. 1931, requires claims to be filed within five month safter the date of injury. In this case, claimant's injury was not determined until January, 1935. The word "accident," and the word "injury," are not used synonymously in this statute. Acme Body Works v. Koepsel, (Wis.) 23 N.W. 756. The date of disability fixes the date of injury. 71 C. J. 966; First Union Company v. Koonce, 51 S.W.2d 777; Texas Association v. Wonderly, 16 S.W.2d 386. It is contended that the court below should have deducted a 25% disability, for which claimant is now drawing compensation from the United States Government. This court is not bound by the rating of the United States Government in arriving at the amount of compensation due a claimant under our act, for the reason that the facts upon which the government rating was fixed were not before the court. In this case, claimant is earning a living by manual labor in the heavy occupations. He is at the present time totally disabled and it is uncertain how long this disability will continue. To hold that the claimant must file a claim within five months from the date of the accident would be giving the statute a technical and narrow construction, out of line with the decisions of the other courts. The decision of the trial court should be affirmed.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This case chiefly involves the proper construction of certain provisions of the Workmen's Compensation Law of this state, Chapter 124, W. R. S. 1931. The facts material to be considered are substantially these: H. Scullion, the defendant in error, on the 15th day of July, 1934, was an employee of the plaintiff in error, The Texas Company, and engaged in the work of assisting in the unloading of some heavy steel pipe, the pieces thereof each being about eighteen feet long, four inches in diameter and one-half inch thick, weighing approximately 350 pounds. The sections of pipe were being transferred from a truck to a pile of this material, and the employee stood between the truck and the pile. A fellow workman allowed a piece of pipe to get away from him on the truck, it rolled down and its end struck Scullion on the right hip. He continued to work, although experiencing a certain amount of pain, which at first quieted down and then commenced to get worse. At length, in order to ascertain what was causing the trouble, in August, 1934, he took a vacation of several weeks from his work, so that he could obtain medical advice.

On the 24th of that month Scullion consulted Dr. McLellan, the employer's physician, doing so at the request of Mrs Connors, the first aid nurse of The Texas Company. It was her duty, she testified, to take care of all minor injuries, and when an accident happened to a company employee, he was required to report to her, and she would either take him to the doctor or send him as necessary. Included as part of her work was the duty also of making out accident reports in Workmen's Compensation cases affecting her employer. Dr. McLellan had an X-ray picture made of that area...

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