Barker, Matter of

Decision Date04 February 1986
Docket NumberNo. 15445,15445
Citation110 Idaho 871,719 P.2d 1131
CourtIdaho Supreme Court
PartiesIn the Matter of Edwin H. BARKER, Deceased. Katie L. BARKER, Claimant-Appellant, v. FISCHBACH & MOORE, INC., Employer, and the Travelers, Surety, Defendants- Respondents.

William R. Hollifield of Decker & Hollifield, Twin Falls, for claimant-appellant.

John W. Barrett of Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-respondents.


Edwin H. Barker was an electrician employed by Fischbach & Moore, Inc. Pursuant to a contract executed between the employer and Barker's union, Barker received $90 per week as a travel allowance for travel between his home in Twin Falls and the work site, which was located 26 miles east of Arco.

At approximately 12:00 noon on April 25, 1980, Barker left the work site to travel to a dentist appointment in Twin Falls. En route to the dentist's office, Barker was involved in a single car accident that resulted in his death.

Barker's wife then filed a claim for workmen's compensation death benefits, alleging that Barker's death had arisen out of or On appeal, this Court reversed. Barker v. Fischbach & Moore, Inc., 105 Idaho 108, 666 P.2d 635 (1983) (Barker I). In Barker I this Court acknowledged that Spanbauer v. Peter Kiewit Sons' Company, 93 Idaho 509, 465 P.2d 633 (1970), might appear to hold that the evidence concerning the distance traveled to and from work and the amount of travel expenses paid by the employer is irrelevant in deciding whether or not the exception to the coming and going rule should apply. However, the Court in Barker I clarified Spanbauer, stating that "it is now necessary for this Court to emphasize that Spanbauer is to be read that the payment of travel expenses, along with other evidence indicating the employer intended to compensate the employee for travel time, will justify expanding the course of employment to include going to and from work." After thus clarifying Spanbauer, the Barker I Court remanded the case to the Industrial Commission "to determine if other evidence, besides the payment of travel expenses, exists to support a finding that the employee was within the course of employment at the time of the accident."

[110 Idaho 872] during the course of his employment. 1 The Industrial Commission denied benefits after concluding that Barker had left the work site and was not engaged in his employment at the time of the accident.

On remand, no additional evidence was submitted to the Industrial Commission by the parties. The commission re-examined the record and the written arguments submitted by the parties and issued a decision in which it again denied benefits. The commission concluded that it could "find no evidence, other than the actual payment itself, to indicate that the employer intended to compensate the employee for travel time or travel expense. The commission therefore concludes that its original decision dismissing the claimant's claim and denying benefits was correct and hereby affirm said decision."

Idaho Constitution, art. 5, § 9, limits this Court's review of Industrial Commission decisions to a review of questions of law. We are required to uphold all factual findings made by the Industrial Commission if those findings are supported by substantial, competent evidence. In re Chavez, 104 Idaho 279, 281, 658 P.2d 950, 952 (1983); Case of Graham, 103 Idaho 824, 826, 654 P.2d 1377, 1378-79 (1982). Having fully reviewed the record, we conclude that the Industrial Commission's finding that the claimant was not within the course and scope of his employment at the time of the accident is supported by substantial and competent evidence.

Furthermore, our review of the record indicates that the Industrial Commission correctly applied the law as stated in Barker I in reaching its decision.

"The rule is well established and long adhered to in this state that where, upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal ...." Suitts v. First Security Bank of Idaho, 110 Idaho 15, 713 P.2d 1374 (1985) (quoting from Carlson v. Northern Pacific Rail Co., 86 Mont. 78, 281 P. 913, 914 (Mont.1929).

As we noted in Suitts, the doctrine of law of the case has long been the rule in this jurisdiction. See Palmer v. Dermitt, 102 Idaho 591, 595, 635 P.2d 955, 959 (1981); Creem v. Northwestern Mut. Fire Ass'n of Seattle, Wash., 58 Idaho 349, 352, 74 P.2d The Industrial Commission correctly applied the law announced by this Court in Barker I to the facts of this case. Accordingly, the order of the Industrial Commission is affirmed; costs to respondent.

[110 Idaho 873] 702, 703 (1937); Unfried v. Libert, 23 Idaho 603, 606, 131 P. 660, 661 (1913); Hall v. Blackman, 9 Idaho 555, 75 P. 608 (1904). In fact, this Court has often compared the doctrine of law of the case with the principle of res judicata, indicating that an appellate court is bound by the law of the case. See Idaho Dept. of Law Enforcement v. One 1955 Willys Jeep, 100 Idaho 150, 157, 595 P.2d 299, 306 (1979) (Bistline, J., dissenting); Creem v. Northwestern Mut. Fire Ass'n of Seattle, Wash., 58 Idaho 349, 358, 74 P.2d 702, 705 (1937) (Ailshie, J., dissenting in part); Hall v. Blackman, 9 Idaho 555, 559-560, 75 P. 608, 609 (1904).

BISTLINE, Justice, concurring in part and dissenting.


Having sometime ago authored a proposed majority opinion (appendicized) which is much like today's opinion for the Court, I am able to concur with the majority view that the Commission in its second review of this case committed no error and did correctly apply Spanbauer v. Peter Kiewit Sons' Co., 93 Idaho 509, 465 P.2d 633 (1970). And, other than for my penchant for delving deeper into prior opinions of this Court and an overly active sense of justice, my earlier proposed majority opinion would have been unanimous, I would have spared myself many days of exhaustive research and the writing of a second opinion which incorporated that which my research and study uncovered. This in turn results in deep concern that three members of the Court simply decline to admit that this is a Court itself capable of committing error. 1 I know of no principle of law which absolutely prohibits this Court--any appellate court--from rectifying its own error--especially when a just respect for a court's duty to attempt the achievement of justice has been activated.

I concede that the doctrine of law of the case has been recognized in Idaho as in other jurisdictions. 2 In Neilsen and Co. v. Cassia and Twin Falls County Joint Class A School District, 103 Idaho 317, 647 P.2d 773 (1982), the Court of Appeals recognized that it could not review a finding of the Supreme Court on a prior appeal in the same case. A general proposition of law is that an inferior court is ordinarily bound by a higher court's determination, with some few exceptions. 5 Am.Jur.2d Appeal and Error, § 744.

However stringently the law of the case doctrine may bind inferior courts, it is a different matter where the question comes up in the same appellate court. That doctrine, however, is not binding on appellate courts which on a second appeal perceive that their prior appellate decision was in error. The Arizona Supreme Court, after recognizing that the doctrine was well-established in that state, went on to say:

While some courts insist that the doctrine should be applied at all times, 3 Am.Jur. 547, others create an exception where it appears the former decision was palpably erroneous. An abundance of authority from many jurisdictions sustains this latter principle. For example the Supreme Court of California sixteen years ago rejected the doctrine that the law of the case absolutely precluded re-examination of a manifestly unjust decision.

" * * * The doctrine of the law of the case is recognized as a harsh one (2 Cal.Jur. 947) and the modern view is that it should not be adhered to when the application of it results in a manifestly unjust decision. United Dredging Co. v. Industrial Acc. Comm., 208 Cal. 705, 284 P. 922. However, it is generally followed in this state. But a court is not absolutely precluded by the law of the case from reconsidering questions decided upon a former appeal. Procedure and not jurisdiction is involved. Where there are exceptional circumstances, a court which is looking to a just determination of the rights of the parties to the litigation and not merely to rules of practice, may and should decide the case without regard to what has gone before. Messinger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152; Seagraves v. Wallace, 5 Cir., 69 F.2d 163; McGovern v. Eckhart, 200 Wis. 64, 227 N.W. 300, 67 A.L.R. 1381." England v. Hospital of Good Samaritan, 14 Cal.2d 791, 97 P.2d 813, 814.

Among the more recent cases of like import see Rutledge v. Rutledge, 134 Cal.App.2d 689, 286 P.2d 429; Beverly Beach Properties v. Nelson, Fla., 68 So.2d 604, 41 A.L.R.2d 1071; Coleman v. Ziegler, Mo., 248 S.W.2d 610; Burke v. Pittsburg Limestone Corp., 375 Pa. 390, 100 A.2d 595.

We are of the opinion that a ruling on one appeal if manifestly or palpably erroneous is not to be treated as conclusive on subsequent appeal of the same case. We are of this view because courts exist but for the ultimate purpose of establishing justice. If we adhere rigidly to an arbitrary principle of convenience and declare as our decision that which is clearly wrong and which we know to be wrong, then we are defeating the purpose for which courts exist. Moreover, we are in effect saying that it is of no consequence to us that justice had not in the end prevailed. Sibley v. Jeffreys, 81 Ariz. 272, 305 P.2d 427, 429-30 (1956).

As summarized in 5 Am.Jur.2d Appeal and Error, § 750:

Since the very purpose of the...

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