LaChapelle v. Union Pacific Coal Co.

• Decision Date: 24 April 1923
• Docket Number: 1122
• Citation: 214 P. 587,29 Wyo. 449
• Parties: LaCHAPELLE, ADM'X. v. UNION PACIFIC COAL CO
• Court: Wyoming Supreme Court

214 P. 587

29 Wyo. 449

LaCHAPELLE, ADM'X. v. UNION PACIFIC COAL CO

No. 1122

Supreme Court of Wyoming

April 24, 1923

ERROR to the District Court, Lincoln County; HON. JOHN R. ARNOLD Judge.

Peter Fomakis was awarded compensation in a lump sum under the Workmen's Compensation Act for injuries resulting in his permanent total disability. On the day following the making of the order of award, Fomakis died. Thereafter the District Court modified the order awarding compensation by striking therefrom the lump sum allowance for permanent total disability, and substituting therefor an allowance for temporary total disability equal to the aggregate monthly installments, payable from the time of the injury until the death of the injured workman. From the denial of a motion to set aside the modified order, Flo LaChapelle, as administratrix of the estate of decedent, prosecutes error.

Affirmed.

John A Shelton and Thomas Hunter, for plaintiff in error.

The judgment of February 16th, amending and modifying the judgment of January 3rd, 1922 was void, the court being without jurisdiction of the subject matter or of the parties affected thereby, and for the further reason that it was contrary to that which the law required upon the facts attempted to be determined. It may be reviewed without a bill of exceptions. (Grover Irr. Co. v. Ditch Co., 21 Wyo. 204.) Exceptions were also preserved for review by a motion to set the judgment aside. (5926 C. S.) There was no notice of the hearing. It seems necessary to determine whether the "order of award" entered on January 3rd, 1922 is a judgment or an order, a judgment being the final determination of the rights of the parties. (Sec. 5875 C. S.; 23 Cyc. 665-668;) Its nature is determined from its substance rather than its form. (23 Cyc. 670.) Orders of the class in question are governed by procedure prescribed by Sections 4326-4327 C. S. 1920. The order of award of January 3rd, 1922 possesses all of the essentials of a judgment; the judgment of February 16th, 1922 was made at a different term of court and is a new and different judgment from that rendered on January 3rd based upon occurrences after January 3rd; the order of January 3rd was a final determination and adjudication of the compensation claim. (23 Cyc. 1215.) It could only be set aside in a manner prescribed by law. (23 Cyc. 673; 2 Black on Judgments, 500.) The case was not within the first and second subdivision of 5923 C. S., nor of 5927 C. S., providing for the vacation of judgments by action. (Scott v. McNeal, 154 U.S. 34; 23 Cyc. 684; Pennoyer v. Neff, 96 U.S. 714.) Notice was indispensable. (Kinderhock v. Claw, 15 Johns, 538; Adams v. Jeffers, 12 Ohio 253; Corliss v Corliss, 8 Vt. 389.) The proceedings of February 16th affected property, and being without notice, was lacking in due process of law. (Merchants Bank v. Ballou, 98 Va. 112; 12 C. J. 1120; Home etc. Co. v. Los Angeles, 227 U.S. 278.)

The Fourteenth Amendment of the federal Constitution applies not only to the states but to every person, natural or artificial, who may be a depositary of state power. (Railway Co. v. Chicago, 116 U.S. 226.) The attempted modification of the judgment of January 3rd was within the prohibition of the Fourteenth Amendment. The power of the District Court to vacate or modify its judgment at a subsequent term is provided by statute. (5923 C. S. Gramm v. Fisher (Wyo.) 31 P. 767.) The procedure applies to orders as well as judgments. The former judgment contained a finding of permanent total disability; its attempted modification by the order of February 16, contained a finding of temporary total disability, based upon facts occurring subsequent to the former judgment--both judgments of disability; and the compensation rate is fixed by Chapter 138 L. 1921. The finding of temporary total disability was absurd in view of the fact that the workman had died on January 4th while suffering from a permanent total disability. In this case the employee lived seven months and four days following the injury and the award should have been paid within two months after the injury. However, the machinery of the law was so slow in its operation that the man died before the compensation, to which he was entitled, got into his hands though death did not occur until after the court had determined that he was entitled to receive it. The workman suffered total paralysis; he was first sent to a hospital in Minnesota and later to a hospital in Denver; his treatment and care after the injury entailed a cost, which, it is fair to assume, was due the creditors of the estate; he left no property except his claim for compensation. The judgment of February 16th is void and should be set aside.

Lacey & Lacey, for defendant in error.

The District Court record does not show that the order of award made January 3rd was entered by the clerk; plaintiff's decedent died the day after its date; the court thereupon heard evidence and made an order awarding an allowance for temporary total disability for seven months and four days at $ 50.00 per month, also finding that decedent was a single man without dependents. It is not shown that decedent left surviving relatives, near or remote. The compensation law is intended to afford relief to those who suffer loss. (4016 C. S. 1920; Zancanelli v. Coal & Coke Co., 25 Wyo. 511.) It is not intended to provide compensatory damages, but relief, first to the injured workmen and second, in case of his death, to those dependent upon him. (Western Union Co. v. McGill, 57 F. 699.) The motion for new trial was not filed until May 13th, 1922; it constitutes a full appearance by plaintiff in error to the cause and cures any possible defects for failure of notice of the order of February 16th, 1922. The order, overruling the motion, made July 25th, 1922 was made at the same term when the order of February 16th, 1922 was entered. The court has absolute control of its decrees and judgments during the term at which they are rendered. (Cornell University v. Parkinson (Kan.) 53 P. 138; Niles v. Park, 49 Ohio St. 370; Aetna Co. v. Com'rs. (8th Cir.) 25 C. C. A. 94; Boals v. Shules, 29 Ia. 507; Ex Parte Doak, (Ala.) 60 So. 64; Higgins v. Higgins, (Mo.) 147 S.E. 962; Ewart v. Peniston, (Mo.) 136 S.W. 422; Currey v. Tinity etc. Co., (Mo.) 139 S.W. 2121; Winder v. Winder, (Nebr.) 125 N.W. 1095.) Aside from the question of notice other grounds in the motion for new trial, assigning irregularity in the proceedings of February 16th, 1922, that the order of that date is not sustained by sufficient evidence, and is contrary to law; error in the assessment of amount of recovery, and the errors of law appearing at the trial, are so general and indefinite as not to present any matter to this court for review. (Baynes v. Allison, 108 Ga. 782, 33 S.E. 682; West Chicago Ry. Co. v. Krueger, 168 Ill. 586, 48 N.E. 442; Pettit v. Pettit, 138 Ind. 597, 38 N.E. 1791; Etchells v. Wainwright, 76 Conn. 534, 57 A. 121; Dickerson v. State, 18 Wyo. 440, 116 P. 448.) The bill of exceptions does not purport to contain all of the evidence, nor does the trial court certify with respect to the evidence. There is no showing that the delay in filing the motion for new trial was caused by the moving party being unavoidably prevented from filing the same within the statutory time and was, therefore, not entitled to consideration. (Blonde v. Merriam, 21 Wyo. 513.) The record fails to disclose that the order of February 16th, 1922 materially affects substantial rights of the plaintiff in error as is required by Sec. 5870 C. S. In the absence of evidence to the contrary, everything is presumed in favor of the ruling of the court and until the contrary is shown, the presumption that the ruling is right must stand. (Miller v. Atlantic Etc. Co., 95 S.C. 471, 79 S.E. 645; Boetcher v. Thompson, 21 S.D. 169, 110 N.W. 108; Westpahl v. Nelson, 25 S.D. 100, 125 N.W. 640; Peck v. Alexander, 40 Colo. 392, 91 P. 38; Kelly v. Chicago Ry. Co., 175 Ill.App. 196; Mobile etc. Co. v. Louisville etc. Co., 172 Ala. 313, 54 So. 1002; Santos v. Holy Roman Catholic etc. Church, 212 U.S. 463; Crosby v. Stevens, (Tex.) 184 S.W. 705; Martin v. Clements, (Tex.) 193 S.W. 437; Tindall v. Chicago Ry. Co., 200 Ill.App. 556; Prude v. Thompson, (Ala.) 79 So. 21; Donnatin v. Union Hardware Co. (Calif. App.) 175 P. 26; Matthews v. N. Y. Central R. Co., (Mass.) 120 N.E. 185; McCague Inv. Co. v. Mallin, 23 Wyo. 201, 147 P. 507; Wyo. Loan & Trust Co. v. Holliday, 3 Wyo. 386, 24 P. 193.) If the finding of February 16th, 1922 be correct, and the presumption is that it is correct, then, there is no one with a rightful claim to compensation from the accident fund in the state treasury, because of any results to the deceased beyond January 4th, 1922, either in the way of permanent injuries, or otherwise. There is no record of proof showing that plaintiff in error was the administratrix of the estate of decedent, nor absence of notice of the hearing prior to the order of February 16th. The finding and judgment of the court below should be affirmed.

John A. Shelton and Thomas Hunter, in reply.

The bill of exceptions shows that the judgment of January 3rd was in writing, signed by the judge of the lower court and filed in the office of the clerk thereof. The compensation law requires that payment shall be made for "permanent total disability" in a certain lump sum. Deceased lived seven months and four days after his injury. Except for the delay by the defendant in error from June 1st to November 5th, 1921 to report the accident, which should have been reported within twenty days, the compensation would have been paid to the injured workman in his lifetime and made available to meet the extraordinary expense which his condition required. Plaintiff...