Horvath v. Sheridan-Wyoming Coal Co.

• Decision Date: 24 November 1942
• Docket Number: 2221
• Parties: HORVATH v. SHERIDAN-WYOMING COAL CO. ET AL
• Court: Wyoming Supreme Court

131 P.2d 315

58 Wyo. 211

HORVATH v. SHERIDAN-WYOMING COAL CO. ET AL

No. 2221

Supreme Court of Wyoming

November 24, 1942

APPEAL from the District Court, Crook County; HARRY P. ILSLEY Judge.

Action by Louis Horvath against the Sheridan-Wyoming Coal Company and J. T. Kessinger to recover on an alleged contract made in connection with a workmen's compensation proceeding. The trial resulted in a verdict in favor of the plaintiff, and judgment was accordingly entered thereon. From an order granting the defendants a new trial, the plaintiff appeals.

Remanded and affirmed.

For the plaintiff and appellant, there were briefs by R. G Diefenderfer and John F. Raper of Sheridan, and oral argument by Mr. Diefenderfer.

This is an appeal from an order granting defendants a new trial. A verdict in favor of plaintiff had been returned by a jury in the trial court. Plaintiff's petition stated two causes of action, but upon a court order requiring him to elect between his causes of action, he stood upon his second cause and the first cause was withdrawn. In his second cause of action upon which the cause was finally submitted to the jury, plaintiff claimed to have been employed by defendant company under an oral contract of lifetime employment, and that said contract was breached by his discharge about October 22, 1940, and by the company's refusal to give him further employment; that the consideration for said contract was plaintiff's agreement to forego his right to workmen's compensation for injuries while employed by the company on December 4, 1937. Defendant's answer denied plaintiff's claim. Plaintiff's evidence sustained the allegations of his second cause of action. The only questions for decision by the lower court in the first instance were and in this court are: (1) Does the evidence justify the verdict? (2) Is the verdict in accordance with law? The verdict was supported by evidence and rendered in accordance with law. An oral contract of lifetime employment, if based upon a valid consideration other than the services to be performed, is enforceable and upon a breach thereof by the employer he is liable to the employee for the damages resulting therefrom. (39 C. J. 41, 109-111; 35 A. L. R. 1434. Plaintiff was paid compensation for injuries received on December 4, 1937. He had a right to make application for reopening of his case to recover additional compensation not later than June 24, 1940, but did not do so because of an oral agreement by his employer to give him lifetime employment at living wages. Plaintiff's agreement to forego an application for additional compensation was a valid consideration for the company's promise to give him lifetime employment. 13 C. J. 311, 312; 17 C. J. S. 420-421; Weigand v. Motor Company (Pa.) 167 A. 493; Frye v. Hubbell (N. H.) 68 A. 325; Drilling Company v Oil Company (Texas) 41 S.W.2d 1019. The rule has been recognized and applied in a vast number of cases. Some of the more modern decisions on the point are: Davis. v. Battle (Fla.) 182 So. 243; Beyer v. Wolfe (Ill.) 228 Ill.App. 429; Petroleum Ref. Corp. v. Oil Co. (Okla.) 65 F.2d 997; Shelley v. Barge Co. (Ore.) 76 P.2d 477; Harp v. Hamilton (Tex.) 177 S.W. 565; Nicholson v. Neary (Wash.) 137 P. 492; 12 Amer. Jur. Sec. 79; Aiken v. Comm. of Int. Rev., 35 F.2d 620, affirmed 282 U.S. 277. Even if the promisor received no benefit, a detriment to the promisee is consideration. Feldmeier v. Mortgage Securities (Cal.) 93 P.2d 593; 17 C. J. 458. Plaintiff's contract was made with the company's general manager who had authority to make it. 19 C. J. S. 469, 470; Fisher v. Roper Lumber Co. (N. C.) 111 S.E. 857; Corporation v. Kramer, 57 F.2d 698. It is true that a trial court in the exercise of sound discretion may grant a new trial, but it may not act arbitrarily. Kester v. Wagner, 22 Wyo. 512; Elliott v. Sloan, 38 Wyo. 276; Kowlak v. Tensleep Merc. Co., 41 Wyo. 20. A verdict should never be reversed except where the evidence is one way and the verdict or findings another. Marshall v. Rugg, 6 Wyo. 270. Where the correctness of the verdict depends upon the credibility of witnesses, it seldom should be disturbed. 46 C. J. 183. The order granting a new trial should be reversed and the original judgment herein affirmed.

For the defendants and respondents there was a brief and oral argument by R. E. McNally of Sheridan.

The only question before this court is whether or not the trial judge acted beyond and outside of a sound discretion, and acted arbitrarily in setting aside the verdict and judgment of the court, and in granting a new trial. It is true that a stronger case for reversal is required where a new trial has been granted by the trial court than where one has been refused. Horse Creek Conservation District v. Lincoln Land Company (Wyo.) 92 P.2d 572. The right to compensation takes the place of all rights of action against the employer contributing to the fund. Article X, Section 4, Constitution; Sec. 124-102, R. S. 1931; Sections 124-103-110, R. S. 1931; Compensation Board v. Abbott (Ky.) 278 S.W. 533; University v. Industrial Commission (Utah) 279 P. 889; Carpenter v. Globe Indemnity Company, 129 A. L. R. 416. A compromise of the parties not followed by a judgment of the court is not binding. Midwest Refining Company v. George (Wyo.) 261 P. 1005. The relief which was available to plaintiff is suggested in Cramer v. Kansas City Railway Company (Kan.) 211 P. 118. The alleged contract was unenforceable under the provisions of Section 124-110, R. S. The two year limitation period within which application may be filed for a modification of the award must be on the ground of increase of incapacity due solely to the injury. Laws 1937, Chapter 128. No such allegation appears in plaintiff's petition. The trial court exercised sound discretion and did not act arbitrarily in granting a new trial.

John F. Raper and R. G. Diefenderfer in reply.

The trial court can grant a new trial only for reasons alleged in the Specifications of Error (Sec. 89-4908, R. S. 1931; Allen v. Lewis, 26 Wyo. 85), unless it acts on its own motion before judgment has been entered. 46 C. J. 283, 317, 328. Exercise of discretion by trial court in granting a new trial may not be arbitrary, but must be within the bounds of law and reason. 46 C. J. 409; Elliott v. Sloan, 36 Wyo. 100. Assignments of error were insufficient to authorize granting of a new trial by the trial court. Posvar v. Pearce (Wyo.) 263 P. 711; Stein v. Schuneman, 273 P. 543; Bowman v. Bowman, 82 P.2d 357; Schiller v. Blyth & Fargo Co., 15 Wyo. 304; Sterling Lumber Co. v. Thompson, 47 Wyo. 519. The verdict was conclusive as to the facts found. 64 C. J. 1107. It became the duty of the court to render judgment thereon. 34 C. J. 46; Beam v. Bank (Okla.) 230 P. 881. The statement that the Kentucky law is the same as Wyoming is incorrect and the Abbott case reported in 278 S.W. 533 is not controlling, nor is the Utah case of University v. Industrial Commission (Utah) 279 P. 889. The quoted portion of the case of Carpenter v. Globe Indemnity Company (R. I.) 14 A.2d 235 is obiter dictum. Under the Compensation Law, Horvath is now barred from even applying for any award, a situation obviously unjust. The trial court's order granting a new trial should be set aside and the judgment in favor of appellant affirmed.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

The question to be disposed of by our decision in this litigation is whether there shall be upheld an order of the district court of Crook County granting a new trial in an action upon an alleged contract which it is claimed was made in connection with a Workmen's Compensation proceeding. The appellate procedure is that permissible under one of the provisions of the direct appeal law of this state, viz., Section 89-4910, W.R.S. 1931.

The plaintiff and appellant, Louis Horvath, will be usually subsequently referred to herein as the "plaintiff", the "employee" or by his surname. The defendant and respondent Sheridan-Wyoming Coal Company, a corporation, may be appropriately mentioned hereinafter as the "Company", the "employer" or as the "corporate defendant". The defendant and respondent Kessinger may properly be designated as the "manager" or by his own surname.

The facts material to be considered as we read the record may fairly be stated to be substantially as follows:

Louis Horvath was injured on December 4, 1937, while in the employ of the Company at Acme, Wyoming. Injury suffered and the manner in which it was incurred are very well outlined in the final order of award made in the compensation case phase of this litigation by the district court of Sheridan County as follows:

"While operating cutting machine in coal mine a slab of coal slipped off face of pillar, causing laceration of scalp, fracture of right fibula, and injury to muscles of right shoulder. Has been compensated for temporary total disability to and including March 10, 1938, at which time he endeavored to work, but the injury to his shoulder prevented him from so doing. Is entitled to compensation for temporary total disability March 28th to June 1st, both inclusive, 66 Days at $ 60.00 month."

The employee resumed work June 2, 1938, at first as a watchman at the Acme mine of the Company. Thereafter, when that mine closed down April 1, 1940, he was placed at work by his employer in aiding in the dismantling of this mine. It appears that he was injured also on April 14, 1940, due to his falling off a bench while engaged in taking down some wires. For this injury he received an award under the Workmen's Compensation Law, amounting to $ 41.02. He was employed thereafter in this dismantling work, at digging up mine track and at other jobs connected...