Cathey v. Industrial Commission
| Decision Date | 27 October 1964 |
| Citation | 25 Wis.2d 184,130 N.W.2d 777 |
| Parties | Thomas CATHEY, Appellant, v. INDUSTRIAL COMMISSION, Lambrecht Farms, et al., Respondents. |
| Court | Wisconsin Supreme Court |
H. R. George, Milwaukee, for appellant.
Kivett & Kasdorf, Milwaukee, for Lambrecht Farms and Great American Ins. Co., Clifford C. Kasdorf, Milwaukee, of counsel.
This is Mr. Cathey's second appeal to this court, and we are convinced that he is foreclosed as to his principal contentions on this appeal because the judgment on the previous appeal is res judicata. It is necessary that we review the development of this litigation.
Mr. Cathey claims to have been injured on April 2, 1958, while an employee of the defendant Lambrecht Farms. He made an application for compensation, and a hearing was held before an examiner of the Industrial Commission. The examiner's decision, dated November 3, 1959, was adverse to Mr. Cathey. Mr. Cathey filed a petition for review, and on January 29, 1960, the Industrial Commission reversed the examiner's decision. This order was appealed by the employer to the circuit court, and a judgment was entered, dated February 17, 1961, setting aside the award of the Industrial Commission; the case was remanded for a review of the transcript and 'for such other action as the Industrial Commission may in its discretion decide.' The aforesaid judgment was appealed by Mr. Cathey to this court and was affirmed. Lambrecht Farms v. Industrial Comm. (1961), 15 Wis.2d 143, 111 N.W.2d 916.
Pursuant to that judgment, the Industrial Commission reviewed the record, including the transcript, and on December 27, 1961, it made an order dismissing the application. Mr. Cathey sought review of that order in the circuit court. On January 20, 1964, the circuit court entered a judgment which affirmed the commission's order. It is the latter judgment which is now here on appeal.
In order to evaluate Mr. Cathey's principal contentions on the instant appeal, we would be obliged to re-examine the correctness of our previous decision, and we decline to do this. Litigation must have an end. The doctrine of res judicata is applicable to bar a second examination of the merits of a controversy which has previously been decided.
We will not re-examine the merits of those contentions of the appellant which were involved in the previous appeal. Our refusal to reconsider such claims is not, however, a studied assertion that we were correct three years ago when we originally decided the matter. Mr. Justice Robert H. Jackson put the concept in proper perspective when he said: 'We are final not because we are infallible, but rather we are infallible because we are final.'
The appellant urges that the circuit court erred in its judgment of February 17, 1961, which judgment set aside the Industrial Commission's award. The claim advanced by Mr. Cathey is that this judgment on the part of the circuit court violated sec. 102.23, Stats. However, this is the precise judgment which this court has already reviewed and affirmed. Mr. Cathey also argues that in reversing the commission the circuit court in 1961 erred in its assumption that the commission may not base its review on an examiner's synopsis as opposed to the full transcript. This question, too, was considered upon the prior appeal.
Mr. Cathey further claims that he was denied his constitutional right to a hearing on the part of the Industrial Commission after the matter was remanded. In its previous opinion, this court expressly observed that the granting of a hearing was discretionary with the commission. The circuit court's mandate, which we affirmed, did not require such a hearing. If mr. Cathey considered our mandate to be in error, he was obliged to bring it to our attention in a motion for rehearing.
Mr. Cathey has already challenged the judgment of the circuit court on appeal and lost. Lambrecht Farms v. Industrial Comm. (1961), 15 Wis.2d 143, 111 N.W.2d 916. There was no rehearing, and the previous judgment is res judicata. This court has said on numerous occasions that a former decision of the supreme court in a cause is conclusive upon the parties and will not be reviewed on a subsequent appeal from other orders made by the circuit court in the same cause. Plesko v. Milwaukee (1963), 19 Wis.2d 210, 120 N.W.2d 130; Estate of Hill (1956), 272 Wis. 197, 75 N.W.2d 582.
Also, this court held in Lutien v. Kewaunee (1913), 151 Wis. 607, 609, 139 N.W. 312:
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Fehrman v. Smirl
...the rule that on a second appeal the supreme court will not reconsider its rulings made on the earlier appeal. In Cathey v. Industrial Commission (1964), Wis., 130 N.W.2d 777, this court 'We will not re-examine the merits of those contentions of the appellant which were involved in the prev......
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...considered that mandate to be erroneous, he was obliged to challenge it in a motion for a rehearing. See Cathey v. Industrial Commission, 25 Wis.2d 184, 187, 130 N.W.2d 777, 779 (1964). Absent such a motion, the only question that can be reviewed as a matter of right on further appeal is wh......
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Olson v. Hardware Dealers Mut. Fire Ins. Co., 50
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