Miller v. Schlereth
| Decision Date | 18 March 1949 |
| Docket Number | 32518. |
| Citation | 36 N.W.2d 497,151 Neb. 33 |
| Parties | MILLER v. SCHLERETH. |
| Court | Nebraska Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. With respect to the provisions of the Workmen's Compensation Act, the public has an interest in its due enforcement and observance which it is the duty of the court to protect, even without regard to the wishes of the parties.
2. The Workmen's Compensation Act creates new remedies and new liabilities. The manner in which it operates is to be found under the legislation itself.
3. In all questions under the Workmen's Compensation Act, it is our duty to avoid rules of technical construction as much as possible, and to determine the intention of the Legislature from the language of the act as a whole, rather than from the loose words or phrases of isolated paragraphs.
4. The provisions of the Workmen's Compensation Act are exclusive of all other liability as to those subject to it.
5. In entering into an agreement under the Workmen's Compensation Act to discharge the employer from all liability for a permanent disability of the employee upon payment of a lump sum in lieu of periodical payments, the parties are not at liberty to make a settlement at variance with statutory terms.
6. Section 48-136, R.S.1943, provides in part that a copy of the settlement shall be filed with the compensation court and no settlement shall be binding unless it is in accord with the provisions of the Workmen's Compensation Act.
7. Section 48-140, R.S.1943, requires in part that all settlements by agreement of the parties with the approval of the compensation court shall be final and not subject to readjustment, provided, however, no settlement shall be final unless there is conformity with the provisions of this act, a finding by the compensation court, the district court, or appellate court.
8. In order to entitle a party to appeal there must have been a final order or judgment rendered in the cause.
9. An order is not final so as to be appealable when the substantial rights of the parties involved in the action remain undetermined, and when the cause is retained for future action.
10. Section 25-2001, R.S.1943, vests the district court with power to vacate or modify its own judgments after the term at which such judgments were made, and where fraud is practiced by the successful party in obtaining the judgment.
11. As provided in section 48-181, R.S.1943 , as amended, where in a compensation case a rehearing before the compensation court is waived and appeal had direct to the district court, the trial is de novo in the district court and the court shall have the authority to try, hear, and determine the cause in equity.
12. Proceedings to vacate a judgment after the term at which the judgment was entered must be commenced within two years of the date of rendition of such judgment, as required by section 25-2008, R.S.1943.
13. To vacate or set aside a judgment the party seeking to do so must file a petition in the district court verified by affidavit, setting forth the judgment sought to be set aside, and alleging the grounds upon which the same should be vacated or set aside, and summons shall be issued thereon and served as in the commencement of an action, as required by section 25-2002, R.S.1943.
14. When the district court, as provided for in section 48-181, R.S.1943, as amended, is authorized to try a workmen's compensation case de novo as in equity, sections 25-2001 through section 25-2008, R.S.1943, are applicable.
15. The word 'may' when used in a section of the statute, means 'must' whenever third persons or the public have an interest in having the act done, or have a claim de jure that the power shall be exercised.
16. When a judgment is vacated and set aside it is nullified so that the resulting situation is precisely the same as if the judgment had never existed.
17. The effect of setting aside or vacating a judgment, generally speaking, is to leave the matter in controversy open for future determination, and that determination must afford the parties in interest the right of a fair trial.
18. Under section 25-2004, R.S.1943, the court may first try and decide upon the grounds to vacate a judgment, before trying or deciding upon the validity of the cause of action, however this section of the statute does not authorize or empower the court to determine the merits of the controversy.
John C. Mullen, of Omaha, and Bayard T. Clark, of Falls City, for appellant.
Pual P. Chaney and Jean B. Cain, both of Falls City, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is a workmen's compensation case. On the 2d day of October, 1945, the plaintiff received personal injuries arising out of and in the course of his employment.
He was employed by the defendant as a laborer, and while engaged in dismantling an electric refrigerator the unit exploded causing the liquid to penetrate his eyes and to enter his lungs. He filed a petition in the Nebraska Workmen's Compensation Court and the case was heard before a judge of said court. On January 17, 1946, an award was entered, finding the plaintiff's wages to be in the amount of $23.56 a week; finding further that the plaintiff was temporarily totally disabled from and after the 2d day of October, 1945, until January 8, 1946, a period of 14 weeks, for which the plaintiff had been compensated; and that from January 8, 1946, the plaintiff suffered 90 percent permanent partial disability to his right eye, and 80 percent permanent partial disability to his left eye making an average of 85 percent permanent partial disability for which the plaintiff was entitled to compensation at the rate of $13.35 a week for 286 weeks, and thereafter compensation at the rate of $9.01 a week for the rest of his life.
The defendant waived rehearing before the compensation court and gave notice of appeal to the district court for Richardson County. The plaintiff entered his voluntary appearance and submitted to the jurisdiction of the district court. On January 30, 1946, the defendant filed a petition in the district court requesting a trial de novo. The petition set forth the history of the accident and the procedure before the compensation court; alleged that the findings of fact by the compensation court were not conclusively supported by the evidence; and prayed the court to hear the matter on a trial de novo. It was stipulated that the case be heard in the district court on the pleadings in the compensation court.
On March 23, 1946, a stipulation between the parties was filed in the district court which recited the history of the accident and the proceedings had with reference to compensation, and that at the present time doctors would testify that it was impossible to determine the exact disability plaintiff suffered by reason of the injury to his eyes. To settle the controversy it was agreed that competent doctors would agree that plaintiff had suffered the following maximum disablity to his eyes: 85 percent to his left eye and 20 percent to the right eye; that the average total disability to both eyes was 52.5 percent; that the plaintiff's wages were in the amount of $23.56 a week and under the Workmen's Compensation Act he would normally be entitled to $15.70 a week for a period of 286 weeks; that plaintiff has been paid 11 weeks, in the amount of $133.50, leaving remaining 275 weeks; that 52.5 percent of $15.70 is $8.24 a week for 275 weeks which amounts to $2,326, and that the present value of $2,326 is $1,928.03; that the plaintiff has a life expectancy of 21 years, and for the period of his natural life he is entitled to $4,50 a week for permanent disability, which sum amounts to $4,914, but that the present worth thereof is $2,999.88; and that said sums total $4,927.91. It was agreed that judgment be entered for the total amount in full and complete settlement for all injuries sustained.
The defendant waived his right to file a motion for new trial and his right to appeal.
On the same day the district court entered judgment in conformity with the stipulation, and also on the same day the plaintiff released the judgment as paid and satisfied. At the time the plaintiff signed the release of judgment, the defendant paid him $1,000 in cash, and gave him a promissory note secured by a mortgage on real estate in the amount of $2,000. The total sum of $3,000 was paid to the plaintiff as settlement in full.
On October 31, 1947, the plaintiff filed a motion in the district court for an order requesting the court to cancel and set aside the stipulation, the judgment entered thereon on March 23, 1946, and the satisfaction thereof of the same date. We deem it unnecessary to set forth the allegations of this motion, the pleadings filed in opposition thereto, or the proceedings had in connection therewith for the reason that on February 14, 1948, the plaintiff filed a petition in the district court in the original action to set aside and vacate the stipulation, the judgment entered in accordance therewith, and the satisfaction of the judgment. These proceedings were brought under sections 25-2001 and 25-2002, R.S.1943.
The petition filed February 14, 1948, in the district court set forth the compensation award of the Nebraska Workmen's Compensation Court entered January 17, 1946, and the proceedings leading up to and including the judgment entered by the district court in accordance with the stipulation March 23, 1946 which in fact constitutes a lump sum settlement. The alleged settlement of the judgment in the amount of $3,000 was not presented to the district court for its approval or disapproval, and the transcript fails to show that such...
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