Marsh v. Aljoe, 1607

• Decision Date: 28 January 1930
• Docket Number: 1607
• Citation: 41 Wyo. 220,284 P. 261
• Parties: Marsh v. Aljoe, Et Al.
• Court: Wyoming Supreme Court

284 P. 261

41 Wyo. 220

Marsh v. Aljoe, Et Al.

No. 1607

Supreme Court of Wyoming.

January 28, 1930

For the appellant there was a brief by W.O. Wilson, Attorney General J.A. Greenwood, Deputy Attorney General, and R.J. Jackson Assistant Attorney General, all of Cheyenne, Wyoming.

The court was without jurisdiction to enter the awards; the claim was filed beyond the limit of time allowed by the law then in effect, which was three months after injury, unless a report had been filed by the workman within 20 days after the accident, in which case the limitation is extended from three, to nine months. 4326 C.S.; Laws 1927, Ch. 111, Sec. 1 Sec. 4322 relates to disabilities, and guardianship and is not applicable here. It is presumed that claimant was sane and mentally competent. 32 C.J. 756; 22 C.J. 146; 16 C.J 537; State v. Pressler, 16 Wyo. 214. The amendment of Sec. 4326 limiting the time for filing claims provided by Laws 1923, Ch. 60, Sec. 6 is significant and mandatory. Martini et ux. v. Kemmerer Coal Co., 38 Wyo. 172. The original section was again amended by Ch. 111, Laws 1927, which governs the case at bar. The present act, Ch. 61, Laws 1929, changes the lesser limitation from three to five months. These acts are all mandatory under the rule announced in the Martini case. Sec. 4322 insofar as it conflicts with Ch. 60, Laws 1923, was repealed by implication. Tucker v. State, 35 Wyo. 430. Workman's compensation awards are in the nature of accident insurance. Zancanelli v. Coal & Coke Co., 25 Wyo. 511, and a limit of time for filing claims is consistent with the purpose of the law; the limitation has special application to the case at bar, wherein claimant was shown to have personally received damages for 50% of total and permanent disability from the C.B. & Q.R.R. Co. The awards are contrary to the evidence and unsupported by any evidence. The evidence did not establish the employer's liability, hence claimant is not entitled to compensation. 4323 C.S. It was not established that claimant was in the employment of plaintiff Aljoe, but on the contrary, the evidence showed that claimant was working upon his own account, within the definition of 4321 C.S. Claimant was not entitled to awards in excess of what is recoverable for permanent total disability. 4334 C.S.; Ch. 111, Sec. 5, Laws 1927; Sakamoto v. Kemmerer Coal Co., 36 Wyo. 325. In any event, claimant if entitled to receive anything, he was awarded $635.81 more than allowed by statute. The court erred in refusing to reopen the case upon the application of the State Treasurer. Ch. 111, Sec. 7, Laws 1927. Under the foregoing statute the State Treasurer was entitled to a reopening of the case as a matter of right upon a showing of probable cause.

For the respondent there was a brief by I.G. McCann, of Casper, Wyoming.

The trial court had jurisdiction. It was shown that claimant was incompetent. 4322 C.S. This section is not inconsistent nor repugnant to the provisions of 4326 C.S. The claim was filed within time; the awards are supported by the evidence; claimant was employed by Marsh. Claimant was not permitted to testify because of having been declared incompetent. The case was presented under difficult circumstances it was clearly proven that the accident occurred and grew out of claimant's employment. The manner of paying an employee compensation does not make him any less an employee. McNally v. Diamond Mills Paper Co., (N.Y.) 119 N.E. 242; Nissen Transfer & Storage Co. v. Miller, (Ind.) 125 N.E. 652; Aisenberg v. Adams Co., (Conn.) 111 A. 591. A fair construction of the statute, 4334 C.S. as amended by Sec. 5, Ch. 111, Laws 1927, authorizes recovery for total temporary disability not exceeding $4,000.00, and the statute allows a lump sum for permanent total disability of $4,000.00. But the aggregate amounts paid for temporary total disability for the support of claimant and his family, before it is known whether his disability is permanent and total, should not be deducted from any sum subsequently allowed upon a finding of permanent total disability. It is apparent that the language in the decision of Sakamoto v. Kemmerer Coal Co., 36 Wyo. 325, which has led some of the trial courts into following the interpretation contended for by counsel for appellant, was inadvertently included in the opinion in that case, and should be clarified in the determination of this case. The trial court did not err in refusing to reopen this case; the State Treasurer has no arbitrary right to reopen a case except upon a petition which the court finds presents probable cause; the finding of the trial court on this question, is a finding of fact upon evidence that ordinarily should not be disturbed by the appellate court. The fact that Marsh may have received damages from the railroad company, in 1922, does not mean that he should cease endeavoring to work nor does it mean that he should be barred from recovering injuries received in subsequent employment. Industrial Com. of Colo. v. Johnson, 172 P. 422; 16 Neg. & Comp, Cases Ann. page 350.

BLUME Chief Justice.

On January 28, 1929, Catherine E. Marsh, as guardian of Charles W. Marsh, filed a report of accident, as well as an application for claim, in the District Court of Natrona County, alleging that Charles W. Marsh was an employee of one Sam Aljoe as an automobile mechanic in the general repair of automobiles, and that on April 25, 1928, such employee, after repairing the motor of an automobile, was thrown out of the car while driving it in order to test the motor, landing on his head, and fracturing his skull, as a result of which he sustained permanent total disability and became mentally incompetent. Sam Aljoe filed a report thereafter, denying that Marsh was an employee, and alleged the fact that he, the claimant, was working on his own account, receiving a percentage of the income - later shown to have been 66 2-3 per cent. The case was tried to a jury, which returned a verdict finding the issue in favor of the plaintiff, that he was permanently and totally disabled, and that he was temporarily totally disabled from April 25, 1928 to the 16th day of May, 1929. On May 24, 1929, the court entered orders for temporary total disability and permanent total disability in accordance with the finding of the jury. On June 3, 1929, the State Treasurer, within the time allowed by law, filed an application in the case asking that it be reopened, alleging the following grounds therefor: First, that the allowance was excessive; second, that there was no evidence showing the relationship of employer and employee between Sam Aljoe and Charles W. Marsh; third, that the court was without jurisdiction to make any allowance, for the reason that the application for an award was not filed within the time required by law; fourth, "that there is existing evidence which was not given in the original hearing material to the determination of an award of compensation, which evidence, if presented, would show that at the time of the injury from which claimant complains and upon which an allowance of the awards of compensation were based, the claimant was at the time of the injury upon which such awards were based, at least 50% disabled under the classification of disability established by the Workmen's Compensation Act for the purpose of determining the right to compensation, which disability resulted from a former accident while in the employ of the Chicago, Burlington and Quincy Railroad." An affidavit was thereafter filed by R.W. Haines, claim agent of the C.B. & Q. Railroad, stating that C.W. Marsh was injured on March 25, 1921, while in the employ of such railroad company; that shortly after receiving the injury he filed suit against the company, claiming that he had been totally and permanently disabled; that a settlement of the suit was thereafter made under which the company paid him the sum of $12,500 for 50% total and permanent disability. Counter affidavits were filed on behalf of the claimant, tending to show that at the time of the accident on April 25, 1928, the claimant was in good physical condition. On July 18, 1929, the court denied the application of the State Treasurer, finding it to be without merit and that it failed to show that error was made in the amount of the award, the character thereof, or the grounds on which it was allowed. From this order denying the application to reopen the case, the State Treasurer has appealed.

1. The Attorney General, appearing, as required by law, for the State Treasurer, contends that the case should have been reopened because of the allegation in his application that new evidence existed which would show that the claimant, at the time of the alleged injury, was permanently disabled to the extent of 50%, the claimant having received compensation from the C.B. & Q. Railroad Company. Section 4334, W.C.S. 1920, subdivision B, recognizes the principle that former permanent disability should be considered in determining the allowance for a later disability, by providing:

"Where there has been a previous disability, as the loss of one eye, or the sight thereof, one hand, one foot, or any other previous permanent disability, the percentage of disability from a subsequent injury shall be determined by deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury."

We are not called upon at this time to determine the full meaning of this provision or the application thereof, since counsel for the claimant admits that if claimant was in fact disabled to the extent alleged, the compensation allowed should be reduced proportionately. But he contends that the court found that there was no probable cause for reopening the case, and that this finding is fully...