Hustead v. H. E. Brown Timber Company

• Decision Date: 16 December 1932
• Docket Number: 5889
• Citation: 17 P.2d 927,52 Idaho 590
• Parties: DAN HUSTEAD, Employee, Respondent, v. H. E. BROWN TIMBER COMPANY, Employer, and UNITED STATES FIDELITY AND GUARANTY COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

17 P.2d 927

52 Idaho 590

DAN HUSTEAD, Employee, Respondent, v. H. E. BROWN TIMBER COMPANY, Employer, and UNITED STATES FIDELITY AND GUARANTY COMPANY, Surety, Appellants

No. 5889

Supreme Court of Idaho

December 16, 1932

WORKMEN'S COMPENSATION ACT-AWARD-TEMPORARY DISABILITY-CHANGE OF CONDITION-REOPENING OF CASE-RES JUDICATA.

1. Court's judgment that Industrial Board had no jurisdiction to entertain new compensation proceeding without reference to original proceeding held not res judicata on question of reopening of case because of change of employee's condition (I. C. A. 1932, sec. 43-1407).

2. Awards of workmen's compensation are not final adjudications as to degree of injury sustained (I. C. A 1932, sec. 43-1407).

3. Workmen's Compensation Act must be liberally construed (I. C. A., sec. 43-901 et seq.).

4. Where award was made on theory that employee's injury was temporary, and it later transpired that it was in fact permanent, there was sufficient showing of change in condition to warrant reopening case (I. C. A., sec. 43-1407).

5. Finding that since date of employer's supplementary report, concurred in by employee, that employee had recovered earning capacity, employee's disability as result of accident had increased justified reopening of case and making of award (I. C. A. 1932, sec. 43-1407).

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Everett E. Hunt, Judge.

Application to reopen an award of the Industrial Accident Board, under the provisions of the Workmen's Compensation Act. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

N.D Wernette, for Appellants.

A matter is res judicata when the question actually and directly in issue is judicially determined in a former suit between the same parties or their privies by a court of competent jurisdiction. (Hilton v. Stewart, 15 Idaho 150, 96 P. 579, 128 Am. St. 48; Neil v. Hyde, 32 Idaho 576, 585, 186 P. 710; Marshall v. Underwood, 38 Idaho 464, 221 P. 1105.)

Myrvin Davis, for Respondent.

The board had the right, power and jurisdiction to set aside the award of June 10, 1930. (Aetna Life Ins. Co. v. McCormick, 20 Wis. 265; The Palmyra, 12 Wheat. 1, 10, 6 L.Ed. 531.)

LEEPER, J., MORGAN, J. Lee, C. J., Budge, C. J., Givens, Varian and Holden, JJ., concur.

OPINION

LEEPER, J.

The respondent, Dan Hustead, was employed by the H. E. Brown Timber Company, and on the seventh day of April, 1930, sustained an injury by accident arising out of and in the course of his employment from which he was totally and permanently disabled. Shortly after the injury, notice of injury and claim for compensation were filed with the Industrial Accident Board. Subsequently an employer's supplemental report, subscribed to by Hustead, was filed with the board to the effect that he had returned to his work and was fully recovered on April 28th. Thereafter, on June 10th, the board entered what is termed by the statute a summary and award, based upon the facts as shown by the record, awarding Hustead compensation in the sum of $ 40, which he accepted. Nothing further was done by the board until the procedure hereinafter referred to was taken.

In this original proceeding the proof with reference to the character of the injury seems to have been decidedly casual. In the notice of injury the claimant only stated that he would be disabled for more than a week. In both the preliminary and final physician's reports the answer to the form question, "Has the injury resulted in a permanent disability?" was "No." The physician further stated that the disability was likely to last three weeks and that claimant was able to do his regular work on April 28th. In the employer's supplemental report it was stated that claimant had returned to work on the 28th. This is the only evidence upon which the summary and award of June 10th was based. It appears from evidence adduced in later proceedings, and it is conceded by appellants, that claimant was totally and permanently injured by the accident, and that the finding in the summary and award that the injury was a muscular sprain only and that the employee was disabled for only two weeks and four days is contrary to the facts. It is to be noted that claimant did not participate in these proceedings other than to sign the notice of injury and the employer's supplemental report. The record indicates that he was not aware of the extremely serious nature of his injury (sprain of the sacroiliac joint) at the time of filing notice or of the employer's report. He, of course, had nothing to do with the final entry of the summary and award.

On June 4, 1931, the claimant filed an entirely new application before the Industrial Accident Board, wherein he sought compensation for his total and permanent disability. After a hearing the board awarded him relief as prayed for, and the company took an appeal to the district court. The action of the board was reversed by the district court upon the sole ground that the board had no jurisdiction to entertain a new application. In other words, the court held that, inasmuch as a summary and award had been entered in the prior proceeding, the matter was adjudicated except in so far as a modification might be had by proceeding for a revision under I. C. A., sec. 43-1407, on account of change of condition. Manifestly Judge Hunt was correct in this position, and the claimant acquiesced therein by not further pursuing that action. He promptly, however, filed a petition before the Industrial Accident Board asking that the case be reopened on account of change in condition, which is the basis of the proceedings now before us. To this petition appellants filed answer, denying the allegations of the petition, and setting up as an affirmative defense the plea of res judicata, i. e., the judgment of Judge Hunt dated October 9, 1931. The board found that there had been a change of condition and awarded full compensation as for a total and permanent disability. From this award the company appealed and said award was sustained by the district court. From that decision appellants have appealed.

There are two points to be considered: (1) Was the plea of res judicata improperly overruled? (2) Was there any such change of condition as to permit claimant to reopen the case under the provisions of I. C. A., sec. 43-1407?

As to the plea of res judicata advanced by appellants, we are of the opinion that it is not well founded. The judgment entered by Judge Hunt on October 9, 1931, did not purport to decide the facts relative to the disability. It was based entirely upon the lack of jurisdiction in the board to entertain a new and separate proceeding, and had without reference to the original proceeding in which a summary and award had been entered. An examination of the record in that case indicates that this question was controlling; it was raised by the answer; it was specified as one of the grounds of appeal. In disposing of the matter Judge Hunt specially stated in his memorandum opinion, "That the award and/or the agreement is subject to modification there is no dispute but it must be brought to a hearing upon a petition showing a change in condition and the procedure in such cases is laid down by statute." In finding No. 4 the court stated:

"That said Industrial Accident Board had no jurisdiction under said petition to have a hearing or to make the findings of fact, rulings of law, order and/or award made herein, and said findings of fact, rulings of law, order and/or award, are of no force and effect for want of jurisdiction to make the same," and hence concluded as a matter of law: "That the findings of fact, rulings of law, order and/or award made by the Industrial Accident Board, dated the 8th day of August, 1931, are of no force and effect, and the Industrial Accident Board of the State of Idaho had no jurisdiction to make the same."

The judgment reads as follows:

"That the findings of fact, rulings of law and order and/or award, made herein by the Industrial Accident Board of the State of Idaho, dated the 8th day of August, 1931, be and the same are hereby declared of no force and effect, null and void and not binding on the defendants or either of them herein.

"That the said Industrial Accident Board had no jurisdiction to make said findings of fact, rulings of law and order and/or award, and said proceedings be and the same are hereby dismissed."

It is entirely clear that the court passed upon none other than the jurisdictional question, hence that decision cannot be considered as having adjudicated the merits of the controversy in favor of appellants. The rule is substantially without dispute in any jurisdiction, and is thus stated in 34 C. J. 795, sec. 1214:

"While a dismissal of an action on the sole ground that the court has no jurisdiction of the subject matter of the suit or of the parties is a conclusive determination of the fact that the court lacks jurisdiction, it is no adjudication of the merits and will not bar another action for the same cause; . . . . "

It has been approved by this court in City of Pocatello v. Murray, 21 Idaho 180, 120 P. 812, affirmed in the Supreme Court of the United States in 226 U.S. 318, 33 S.Ct. 107, 57 L.Ed. 239. Under the rule announced in the latter case, even if the court had attempted to decide these matters, and was without jurisdiction, the decision would not be res judicata.

This proceeding is strictly in accord with the statute (I. C. A., sec. 43-1407) and is based upon a change of condition. It is conceded that Hustead is permanently and totally disabled on account of his injury. Upon examination he testified that when he signed the employer's final report he thought that he was able to...