Knight v. Younkin, 6781

• Decision Date: 04 September 1940
• Docket Number: 6781
• Citation: 61 Idaho 612,105 P.2d 456
• Parties: NELLIE V. KNIGHT, Appellant, v. HARRY YOUNKIN and NORTHWEST INDEMNITY EXCHANGE, Respondents
• Court: Idaho Supreme Court

105 P.2d 456

61 Idaho 612

NELLIE V. KNIGHT, Appellant, v. HARRY YOUNKIN and NORTHWEST INDEMNITY EXCHANGE, Respondents

No. 6781

Supreme Court of Idaho

September 4, 1940

TRIALS-JURISDICTION-AGREEMENT OF PARTIES-WITNESSES-PLACE OF HEARING-STIPULATION IN LIEU OF TESTIMONY-CONFLICTING EVIDENCE.

1. An officer, administrative board, or court of state cannot legally hold hearings or conduct trials beyond its borders and jurisdiction to hold such a hearing or trial cannot be conferred by stipulation or agreement of the parties.

2. Where parties in compensation proceedings through their counsel stipulated that hearings should be held in another state where it would be more convenient to procure attendance of witnesses who resided in that state, members of the Idaho Industrial Accident Board could not legally administer oaths in foreign state, and the answers of witnesses, made in response to questions propounded to them at hearing held in such state, were treated as unsworn statements.

3. The purpose of statute, providing that compensation hearings shall be held in convenient place within the county where the accident occurred, is to make convenient attendance at hearing by the parties litigant and their witnesses, and when it does not meet convenience of parties and witnesses to have hearing held in county wherein accident occurred, right to have it held therein may be waived. (I. C A., sec. 43-1404.)

4. Where parties to compensation proceeding in good faith stipulated that compensation hearing should be held in adjoining state where majority of witnesses resided and requested Supreme Court to treat testimony taken at hearing held in adjoining state as evidence, Supreme Court treated parties' stipulation as equivalent to agreement that witnesses heard in adjoining state would if called and legally sworn testify to statements made by them at hearing held in adjoining state, and based its decision on facts disclosed by transcript as if they had been established at a hearing regularly held in Idaho. (I. C. A., sec. 7-109.)

5. Where the facts presented by the testimony of witnesses stipulation or otherwise, in compensation proceeding are conflicting, and there are facts appearing in the record which if uncontradicted would be sufficient to support the order appealed from, order will not be reversed on appeal. (Const., art. 5, sec. 9, as amended, Sess. Laws, 1937, p. 498.)

6. Evidence authorized dismissal of application for compensation on ground that employee's death was not result of a personal injury by accident arising out of and in course of his employment, but was the result of coronary thrombosis which was not caused, nor in any manner affected by wrecking of a truck driven by employee.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. An officer, administrative board or court of a state cannot legally hold hearings, or conduct trials, beyond its borders, and jurisdiction to do so cannot be conferred by stipulation or agreement.

II. The members of the Idaho Industrial Accident Board cannot legally swear witnesses in the State of Washington, and answers of such witnesses to questions propounded to them must be treated as unsworn statements.

III. The purpose of the statutory provision that industrial accident board hearings shall be held in the county where the accident occurred is to make convenient attendance thereat by the parties litigant and their witnesses, and the right conferred by the statute may be waived.

IV. Parties litigant may agree as to what the testimony of an absent witness would be, if present, called and sworn, and if they so agree their stipulation may be used in lieu of such testimony. (I. C. A., sec. 7-109.)

V. In workmen's compensation cases, where the facts presented by the testimony of witnesses, stipulation or otherwise, are con- flicting, and where facts appear in the record which, if uncontradicted, would be sufficient to support the order appealed from, it will not be reversed on appeal.

APPEAL from order of industrial accident board denying compensation for death of employee. Affirmed.

Order affirmed. Costs awarded to respondents.

Wm. D. Keeton and N. D. Wernette, for Appellant.

It is a general rule of law that findings of fact made by the Industrial Accident Board will be set aside as errors of law unless supported by competent evidence, and there must be something in the record to support the findings of the board other than inferences thoroughly discordant with not only the probabilities, but the absolute certainties established by the physical facts shown in the record. (Brink v. H. Earl Clack Co. et al., 60 Idaho 730, 96 P.2d 500; Nistad v. Winton Lumber Co., 59 Idaho 533, 85 P.2d 236; Golay v. Stoddard, 60 Idaho 168, 89 P.2d 1002; Wozniak v. Stoner Meat Co., 57 Idaho 439, 65 P.2d 768.)

As between two possible causes of injury or death, the Industrial Accident Board must choose the most probable, where it is supported by the overwhelming weight of the physical evidence as against a possible cause supported only by inference or mere possibility. (Gamberg v. Industrial Acc. Com., 138 Cal.App. 424, 32 P.2d 413; Southern P. Co. v. Industrial Acc. Com. et al., 96 Utah 510, 87 P.2d 811; Acme Flour Mills Co. et al., v. Bray et al., 185 Okla. 516, 94 P.2d 828; Quigley v. Industrial Acc. Com. et al., 3 Cal. (2d) 46, 35 P.2d 544, 43 P.2d 289; Estate of Puckett, 59 Idaho 529, 84 P.2d 566.)

Nelson & Nelson, for Respondents.

Findings of fact of the Industrial Accident Board will be set aside only upon the grounds that the findings are not based on any substantial competent evidence. (Secs. 43-1408. 43-1409, I. C. A.; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Kaylor v. Callahan Zinc-Lead Co., 43 Idaho 477, 253 P. 132; Butler v. Anaconda Min. Co., 46 Idaho 326, 268 P. 6.)

On appeal from orders of the Industrial Accident Board the Supreme Court is limited to a review of the questions of law. (Sec. 9, art. 5 of the Idaho Constitution as amended; Mundell v. Swedlund, 58 Idaho 209, 71 P.2d 434; secs. 43-1408, 43-1409, I. C. A.)

MORGAN, J. Holden, J., concurs, Givens, J., concurs in conclusion. Budge, J., did not participate in the decision. AILSHIE, C. J. (Dissenting).

OPINION

MORGAN, J.

--In the matter of procedure before the industrial accident board this case closely resembles Hamlin v. University of Idaho, 61 Idaho 570, 104 P.2d 625. In each of these cases the testimony was taken by two members of the board in Spokane, Washington. In this case the attorneys for the parties litigant stipulated that the hearing which had been set by the board to be held in the court house at Wallace, the county seat of Shoshone County, Idaho, be vacated and that it be held November 8, 1939, at Spokane, Washington, commencing at one o'clock P. M., at some suitable place in that city to be designated by the board. It was stated in the stipulation:

"And it is hereby stipulated by said parties through their attorneys that the question of jurisdiction with reference to said hearing being had in Spokane, Washington, is hereby waived by all the parties, and jurisdiction is hereby conferred on said Industrial Accident Board to have said hearing at said Spokane, Washington, as above set forth with like force and effect and binding on all the parties the same as if said hearing had been held in the State of Idaho. That at said hearing, all parties shall have the right to introduce any and all evidence that they respectively see fit."

The board designated the Davenport Hotel, in Spokane, as the place where the hearing should be held and it was held there at the time stipulated. The parties were represented by their counsel, who participated in the hearing, and all testimony in the case was taken thereat. After the trial the members of the board returned to Boise where findings of fact, a ruling of law and an order were made that claimant, appellant herein, take nothing by the proceeding and that the application for compensation be dismissed. This appeal is from the order.

Neither the parties nor their counsel have questioned the validity of the hearing held outside the state. However, at the conclusion of the oral argument on appeal to the supreme court, we called for briefs with respect to its validity and they have been furnished. The question is as to whether there is any legal evidence, or conduct or stipulation which will take the place of legal evidence, to sustain the findings of fact, ruling of law and order appealed from.

An officer, administrative board or court of a state cannot legally hold hearings, or conduct trials, beyond its borders. (Board of Commrs. of Marion Co. v. Barker, 25 Kan. 258; Phillips v. Thralls, 26 Kan. 780; McGarry v. Industrial Com., 64 Utah 592, 232 P. 1090, 39 A. L. R. 306; Warren City Tank & Boiler Co. v. Millham, 132 Okla. 244, 270 P. 85; 14 Am. Jur. 418, sec. 223.) Jurisdiction to hold such a hearing or trial cannot be conferred by stipulation or agreement of the parties. ( New Amsterdam Casualty Co. v. Industrial Acc. Com., 66 Cal.App. 86, 225 P. 459.) In 21 C. J. S. 127-131, sec. 85, it is said:

"So, also, consent cannot cure jurisdictional defects resulting from the determination of matters by a person, judge, or tribunal not qualified or empowered to preside or to perform judicial acts, as by a court not legally in session because convened or sitting at the wrong time or place."

The members of the Idaho Industrial Accident Board cannot legally administer oaths in the State of Washington, and the answers of witnesses in this case, made in response to questions propounded to them at the hearing held in the Davenport Hotel, must be treated as unsworn statements.

I. C A., section 43-1404...