In re Hibler

• Decision Date: 06 December 1927
• Docket Number: 1472
• Parties: IN RE HIBLER; v. HIBLER [*] KITTLESON
• Court: Wyoming Supreme Court

261 P. 648

37 Wyo. 332

IN RE HIBLER;

KITTLESON v. HIBLER ^[*]

No. 1472

Supreme Court of Wyoming

December 6, 1927

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Proceeding under the Workmen's Compensation Act by Vance Hibler employee, against J. W. Kittleson, employer. To review a judgment of the district court allowing compensation for total permanent disability, the employer brings error.

Affirmed.

Durham & Bacheller, for plaintiff in error.

Investigations under Sec. 4327 C. S. are intended to be informal; the term is used because the proceeding is not technically a trial. Mountain Timber Co. v. Washington, 243 U.S. 227; Zancanelli v. Coal Co., (Wyo.) 173 P. 981. The only issue that can be raised in the compensation case is whether the employee was negligent; persistence in unsanitary or injurious practices is a form of negligence, and an instruction was requested on that issue; the refusal of the instruction was error. 28 Cyc. 1627; Dexter v. Thayer (Mass.) 75 N.E. 223; Miller v. Leib, (Md.) 72 A. 466; Wyman v. Turner, (Ind.) 42 N.E. 652; Cohen v. Stevenson, (Conn.) 111 A. 565; Galloway v. United Railroads, (Calif.) 232 P. 491; Acme Co v. Westman, (Wyo.) 122 P. 89; Ins. Co. v. Summers, 19 Wyo. 441. A monthly payment should have been ordered; Chap. 111 L. 1927; Standard Oil v. Sullivan, (Wyo.) 237 P. 253. Instructions I, IV, V, VI, VIII and X unduly emphasized the phrase "total permanent disability" and were unfair. 38 Cyc. 1674; Sakamoto v. Coal Co., (Wyo.) 255 P. 356; Standard Oil v. Sullivan, supra. The loss of one arm unaccompanied by other disability could hardly be called "permanent total disability" under the Act; at any rate it is a question for the jury under instructions.

R. R. Rose and I. G. McCann, for defendant in error.

The right to trial by jury under the compensation law is governed by the allegations of the employer's report, 4327 C. S.; if a jury be demanded, the cause should be tried as a court proceeding; "cause" means case, 2 Words & Phrases 1013-1014; Blyew v. U.S., 20 L.Ed. 638; U.S. v. Rhodes, 27 F. Cas. 875; Davidson v. Farrell, 8 Minn. 258. Under the code a trial is defined as a judicial examination of the issues of law or fact, 5720 C. S. There was no evidence to warrant the giving of the instructions requested by the employer. The injury occurred before the amendment of Section 4335 C. S. by Chap. 111, L. 1927; the terms of the amendment were, therefore, not applicable; exceptions to instructions I, IV, V, VI, VIII and X are not assigned as error in the motion for new trial, but even if this were not so we believe they clearly state the law. The injuries shown by the evidence are not confined to the right arm, but extend to the right shoulder, back and ears. It is also shown that the workman suffers constant pain whenever he attempts to do manual labor; under the facts shown the workman has a total disability. Re Sullivan, (Mass.) 105 N.E. 463, also note following L.R.A. 1916 A p. 380.

KIMBALL, Justice. BLUME, Ch. J., and POTTER, J., concur.

OPINION

KIMBALL, Justice.

In this proceeding the employer, plaintiff in error, contests the claim of the workman, defendant in error, for compensation under the Workmen's Compensation Law. There was a jury trial in the district court, and the judgment on the verdict awarded the workman compensation for total permanent disability.

In the Workmen's Compensation Act it is provided (Sec. 4327, C. S. 1920) that a claim for compensation under that act shall be investigated by the judge of the district court "in such a manner as he may deem necessary to ascertain whether the claim for compensation or the amount thereof is disputed by the employer, and if there be no dispute * * *, and the claim appear to be free from collusion," the judge shall make an order of award in accordance with the facts by him ascertained and the terms of the law. If there be a dispute as to the right "to receive compensation, or as to the amount thereof, then it shall be the duty of said judge to set the case down for a hearing at the earliest possible date," and to direct the giving of notice of the hearing to the employer and the workman. "If the employer in his report of the injury alleges that the injury was due solely to the culpable negligence of the injured employee, or that the claim for compensation is one not coming within the provisions of this law, then a jury may be demanded by either party, and the cause shall be tried, as a court proceeding." Then follow provisions in regard to the selection of the jury, the taking of evidence, fees of jurors, witnesses and court officers, representation by counsel, etc. "At the conclusion of the hearing, the court shall enter an order pursuant to the verdict of the jury, if a jury be called, and if no jury be called, the court or judge shall render a decision upon the facts and law of the case * * * and make an order allowing or disallowing compensation, as the law and the evidence may warrant."

In the case at bar, the employer, by an amendment to his report of the injury, alleged that the injury was due solely to the culpable negligence of the workman, and that the claim for compensation was one not coming within the provisions of the law.

It is conceded that those allegations in the employer's report of the injury gave the workman the right to demand a jury. The workman made that demand, a jury was impaneled, and evidence was taken upon all the issues necessary to be decided to determine the right to compensation. After all the evidence had been taken, counsel for the employer admitted that there was no evidence to warrant a finding either that the injury was due solely to the workman's culpable negligence, or that the claim for compensation did not come within the provisions of the law. For the purposes of this decision we shall assume that counsel's view as to the effect of the evidence was justified without, however, deciding anything as to the meaning of the phrase, "that the claim for compensation is one not coming within the provisions of this law," as used in the statute, and without deciding as to the effect of an admission by the employer that a claim does come within the provisions of the law.

When it appeared that there was no evidence to prove either that the injury was due solely to the culpable negligence of the workman, or that the claim did not come within the law, counsel for the employer moved that the case be taken from the jury and decided by the judge. The motion was overruled, and the case was then submitted to the jury on the issues raised by the evidence. It is claimed that the trial judge erred in refusing to take the case from the jury. The contention is that the statute, which provides for a jury in only those cases where certain issues are raised by the employer's report, means that no other issues shall be submitted to the jury. This presents a question of legislative intention that must be decided upon the language of the statute.

Although the statute makes no provision for a trial by jury except when certain issues are raised by the employer's report, it provides that when a jury is called, the cause shall be tried as a court proceeding, and, at the conclusion of the hearing, that the court shall enter an order pursuant to the verdict. In declaring that the cause shall be tried as a court proceeding, we think it was intended that all issues of fact should be submitted to the jury as in other law cases. If it had been intended that, in cases like the one at bar, some of the issues of fact should be decided by the jury and others by the judge, we believe the legislature would have made the intention clear by appropriate language.

While the theory that a judge is better qualified than a jury to decide questions of fact has its advocates, we cannot say that it had the approval of the legislature that passed the Workmen's Compensation Act. In failing to provide for a trial by jury in all contested cases, the legislature probably was not moved by a desire to give anyone the right to a trial without a jury, but was seeking in certain cases to avoid the delays, inconveniences and expenses incident to the jury trials. It was evidently thought that when, upon proper demand, a jury was in attendance, all issues might be tried before the judge and jury, as in other actions. We are of opinion that in this case the trial judge did not err in overruling the motion to take the case from the jury.

In Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 542, 173 P. 981, 989, in the course of a discussion of the constitutionality of the Workmen's Compensation Act, and in referring particularly to the limitation on the fees to be charged by attorneys (Sec. 4340, C. S. 1920), it was said that the duties of attorneys are confined to filling blanks, etc. and "in case of contest to trying the one question of the sole culpable negligence of the injured employee." The point we now decide was not then before the court, and the quoted clause from that opinion cannot be considered as authority for holding that the question of the sole culpable negligence of the workman is the only issue that may properly be submitted to a jury in cases like the one at bar.

It is contended that the finding that the disability was total and permanent is not supported by the evidence. On this point we are bound by the rule, applied in other classes of cases, that the verdict approved by the judgment of the trial court should not be disturbed by this court unless it appears that there is no substantial evidence to support it. Standard Oil Co. v. Sullivan, 33 Wyo. 223, 237 P. 253; Carter Oil Co. v. Gibson, 34 Wyo. 53, 241 P. 219.

The workman was injured by a fall from the derrick of an oil-drilling rig....