Haugse v. Sommers Bros. Manufacturing Co.

• Decision Date: 20 January 1927
• Citation: 254 P. 212,43 Idaho 450
• Parties: ISABELLE HAUGSE, Administratrix of the Estate of JOE HAUGSE, Deceased, Respondent, v. SOMMERS BROS. MANUFACTURING CO., Employer, and MARYLAND CASUALTY COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

254 P. 212

43 Idaho 450

ISABELLE HAUGSE, Administratrix of the Estate of JOE HAUGSE, Deceased, Respondent, v. SOMMERS BROS. MANUFACTURING CO., Employer, and MARYLAND CASUALTY COMPANY, Surety, Appellants

Supreme Court of Idaho

January 20, 1927

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-DEATH DOES NOT RELEASE INSURER FROM OBLIGATION UNDER AWARD FOR INJURY-SURVIVAL OF ACTION-JURISDICTION OF DISTRICT COURT.

1. District court is not required to dismiss an appeal from the Industrial Accident Board for failure to specify alleged errors of the board.

2. Award to injured employee for loss of eye by enucleation made in accordance with C. S., sec. 6234, as amended by Laws 1921, chap. 217, sec. 5, not being made to depend on continuation of incapacity or whether employee lived throughout life of insurance agreement, casualty company is not released from its obligation by death of employee sections 6231 and 6233, as amended by Laws 1921, chap. 217 secs. 3, 4, being inapplicable.

3. Ordinarily, causes of action which are not assignable do not survive.

4. Right to enforce payment for loss of eye, under agreement by injured employee with insurance carrier, approved by Industrial Accident Board, survived employee, since it was in the nature of a judgment for liquidated damages notwithstanding that claim was nonassignable.

5. Question of whether liability of insurer under agreement for loss of eye terminated on employee's death depended for solution on Workmen's Compensation Law, and Industrial Accident Board was authorized to determine it under C. S., secs. 6214, 6269, 6273, thereby authorizing jurisdiction of district court on appeal from order of board authorizing compensation to be stopped.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Chas. L. Heitman, Judge.

Judgment reversing an order of the Industrial Accident Board. Affirmed.

Judgment affirmed, costs to the respondent.

Chas. M. Kahn, for Appellants.

Where no specifications of error, are filed on an appeal to the district court from the Industrial Accident Board, the appeal should be dismissed. (McNeil v. Panhandle Lumber Co., 34 Idaho 733, 203 P. 1068; Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356.)

If the contract was a complete settlement between the parties and did not constitute an award of compensation, the action should have been started originally in the district court, as any other action at law on contract, and the Industrial Accident Board had no jurisdiction to hear the claim, nor could the district court acquire jurisdiction to hear the appeal. (C. S., secs. 6217, 6223, 6262, 6269; Sess. Laws 1921, p. 474; In re Levangie, 228 Mass. 213, 117 N.E. 200; Holzapfel v. Hoboken Mfg. Ry., 92 N.J.L. 193, 104 A. 209; Burns v. Edison, 92 N.J.L. 288, 105 A. 717; Millaley v. City of Grand Rapids, 231 Mich. 10, 203 N.W. 651.)

There is no right of survivorship of award of compensation made to an injured employee under the Idaho compensation statutes, and where compensation is awarded to an injured employee for disability and he dies from causes other than the injury, compensation ceases with his death and does not descend to his personal representatives. Such right to compensation does not become a vested right in his personal representatives and heirs. (Pedlow v. Swartz Electric Co., 68 Ind.App. 400, 120 N.E. 603; In re Stone, 66 Ind.App. 38, 117 N.E. 669; C. S., secs. 6214, 6219, 6223, 6225, 6231, 6233, 6234, 6240, 6262, 6267, 6269, 6277; Schneider, Workmen's Compensation Law, sec. 380, pp. 973, 974; Honnold, Workmen's Compensation, sec. 1876, pp. 673, 674; Ray v. Industrial Accident Com., 99 Wash. 176, 168 P. 1121, 1122; Zahler v. Dept. of Labor & Industry, 125 Wash. 410, 217 P. 55; La Chapelle v. Union Pacific Coal Co., 29 Wyo. 449, 214 P. 587; Lahoma Oil Co. v. State Industrial Com., 71 Okla. 160, 15 A. L. R. 817, 175 P. 836; Western Indemnity Co. v. State Industrial Com., 96 Okla. 100, 29 A. L. R. 1419, 219 P. 147; Proops v. Twohey Bros. (Ariz.), 240 P. 277; Erie Ry. Co. v. Callaway, 91 N.J.L. 32, 102 A. 6; Heiselt Const. Co. v. Industrial Com., 58 Utah 59, 15 A. L. R. 799, 197 P. 589; Wenning v. Turk, 78 Ind.App. 355, 135 N.E. 665; Duffney v. Morse Lumber Co., 42 R. I. 260, 107 A. 225; Murphy's Case, 224 Mass. 592, 113 N.E. 283; Derinza's Case, 229 Mass. 435, 118 N.E. 942; Wozneak v. Buffalo Gas Co., 175 A.D. 268, 161 N.Y.S. 675; Casmey v. George Parks & Son, 229 N.Y. 623, 129 N.E. 933, 177 N.Y.S. 913; Conrad v. Glenham Embroidery Co., 213 N.Y.App.Div. 507, 210 N.Y.S. 701; United States Fidelity & Guar. Co. v. Salser (Tex. Civ. App.), 224 S.W. 557; Moore v. Lumbermen's Recip. Assn. (Tex. Civ. App.), 241 S.W. 1105; Crawford v. Industrial Com., 110 Ohio 271, 143 N.E. 574; Idaho Sess. Laws 1917, chap. 81, pp. 252-254.)

Myrvin Davis, for Respondent.

The decision upon the motion to dismiss in the district court was within the discretion of that court. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356.)

Jurisdiction over the award was in the board, and, in this case, by the election of the appellant the action was begun before it, and has been continued to the district court and up to this court without objection. (C. S., sec. 6269.)

A contract and award for specific indemnity survives the death from other causes of the person injured, and to whom specific indemnity has been granted. (Forkas v. International Silver Co., 100 Conn. 417, 123 A. 831; Saddlemire v. American Bridge Co., 94 Conn. 618, 110 A. 63; Costello v. Seamless Rubber Co., 99 Conn. 545, 122 A. 79; Bowman v. Industrial Co., 289 Ill. 126, 124 N.E. 373; Ward v. Heth Bros., 212 Mich. 180, 180 N.W. 245; C. S., secs. 6231-6234; Statutes of Connecticut, secs. 5351, 5352.)

WM. E. LEE, C. J. Budge and T. Bailey Lee, JJ., concur. TAYLOR, J., Dissenting.

OPINION

WM. E. LEE, C. J.

One Haugse received a personal injury by accident arising out of and in the course of his employment with Sommers Bros. Manufacturing Co. The injury consisted in the loss of an eye by enucleation, for which the Maryland Casualty Company, insurance carrier for the employer, entered into an agreement with Haugse to pay him $ 1,920, at the rate of $ 16 per week for 120 weeks, payable monthly. A memorandum of the agreement was approved by the Industrial Accident Board, and payments were made according thereto until Haugse died from a cause other than that for which he was being paid. On his death, the Casualty Company appeared before the board and asked that it be relieved from its agreement to further pay the compensation therein provided. Haugse's widow, his administratrix, thereupon applied to have the remaining payments made to her. The board held that it was without jurisdiction to entertain her application, but, treating the Casualty Company's application as one for the modification of an award (C. S., sec. 6269), ordered it to stop the payments. The matter was appealed to the district court, which, in effect, reversed the order of the board and directed that payments provided for in the agreement, not already made to Haugse, be made to his widow, the administratrix. From the judgment of the district court, the surety company has appealed.

It is first suggested that the district court erred in denying the motion to dismiss the appeal from the order of the board. There is no merit in this assignment. It was suggested in McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068, and Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356, that on an appeal from the Industrial Accident Board the appellant should specify the errors alleged to have been committed by the board; and because of the nature of the last-mentioned case, it was suggested that the district court would not have erred had it "refused to consider the appeal." This court, however, has never held that the district court is required to dismiss an appeal from the board for the failure to specify the alleged errors of the board.

The Casualty Company argues that it is the policy of the Workmen's Compensation Law that compensation be paid the workman only during the period of his incapacity for work and that on a termination of incapacity compensation should cease. It is true that under C. S., sec. 6231, as amended, it is provided that where the injury causes total disability for work, "the employer during such disability . . . . shall pay the injured employee . . . ."; and that similar language is found relating to injuries causing partial disability (C. S., sec. 6233, as amended). There is also contained in each of such sections a proviso that "in no event shall the weekly payments continue after the disability ends." However, these sections do not cover the injury sustained by the workman in this case. On the contrary, C. S., sec. 6234, as amended, is applicable to this particular injury. That section provides: "In the case of the following injuries the compensation shall be fifty-five per centum of the average weekly wages, but not more than the weekly compensation provided in section 6231, in addition to all other compensation, for the periods stated against such injuries respectively, to wit: . . . . one eye by enucleation, 120 weeks . . . ." There is nothing in C. S., sec. 6234, or in the entire act, providing for a cessation of payments, for the loss of an eye by enucleation, on the death of the injured person. By its approval of the agreement, the board awarded the workman $ 1,920. The award was in accordance with the statute and was unconditional; it was not made to depend on a continuation of incapacity, or whether the workman lived throughout the life of the agreement; and the Casualty Company was not released from its...