Mustanen v. Diamond Coal & Coke Co.

• Decision Date: 24 November 1936
• Docket Number: 1977
• Citation: 50 Wyo. 462,62 P.2d 287
• Parties: MUSTANEN v. DIAMOND COAL & COKE COMPANY
• Court: Wyoming Supreme Court

62 P.2d 287

50 Wyo. 462

MUSTANEN v. DIAMOND COAL & COKE COMPANY

No. 1977

Supreme Court of Wyoming

November 24, 1936

APPEAL from the District Court, Lincoln County; H. R. CHRISTMAS Judge.

Proceedings under the Workmen's Compensation Law by August Mustanen employee, opposed by the Diamond Coal & Coke Company employer, for additional compensation. From a judgment dismissing the petition, the employee appeals.

Affirmed.

For the appellant there was a brief by Ray E. Lee, Attorney General; Thos. F. Shea, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Snow.

The main question in this case is whether the court had jurisdiction to open up the award. Chapter 100, Section 3, Laws of 1935 should be considered. Chapter 124-140, R. S., as amended by Chapter 129, Section 6 of the Laws of 1933 provides that every award shall be a judicial determination of the rights of the employer, the employee and the Industrial Accident Fund as to all matters involved. Chapter 124-120 (a) provides that the court shall retain jurisdiction of an award until it shall have been fully paid, with power to modify or change the amount of the award to conform to any change in the condition of the injured workman. The order of February, 1933, for $ 900 was in final settlement. The last payment under said order was made July 3, 1934. No action was taken in reference to questioning this order until July 12, 1935, when the "Employee's Report of Accident" was filed, which was followed by a formal petition to vacate the order of February, 1933. This petition to vacate was filed October 7, 1935. This appeal was taken by the workman through the county attorney for Lincoln County and referred to the attorney general's office for attention. We have been unable to discover upon what ground the appeal is based. The statute providing for relief after judgment is Section 89-2301 et seq., W. R. S. 1931. Midwest Refining Company v. George; Shaul v. Colorado Fuel & Iron Company, 46 Wyo. 549. An award is a final judgment, unless jurisdiction is reserved to reopen the case. Laws 1933, Chapter 129, Section 6. The only provision for modification of awards, prior to the 1935 amendment now under consideration, is the provision that the court shall retain jurisdiction in partial payment cases, until the award is fully paid, with power to modify or change the amount thereof. Chapter 124-120, R. S. 1931 (a), amended Session Laws 1935, Chapter 100, Section 5 (a). Mustanen has no standing by reason of the 1935 amendment. The final payment to Mustanen was made a year before his application was filed. The accident occurred, the award was made and the last payment made before the 1935 law was passed. Mustanen, when he receipted for his last payment in July, 1934, lost his remedy for any future change of condition. A change in the statute of limitations affects the remedy only and not the right, and may operate retroactively. Montgomery v. Seneca Iron & Steel Company, 257 N.Y.S. 556; Vincent v. Atherton House Company, 177 N.E. 25; Allen v. Company, 170 S.E. 412; McLaughlin v. Company, (N. J.) 169 A. 542. No right has been destroyed when the legislature restores a remedy which has been lost. Campbell v. Holt, 115 U.S. 620. Statutes will be construed as retroactive only so far as they affect procedure. Where a substantial right is affected, the statute will be construed as not retroactive, but as applying only to accidents occurring subsequent to the act. Workmen's Compensation Law (Schneider), Vol. II, page 2139, Sec. 577. The award had become final before the petition was presented. Such is the construction placed upon similar acts in other states. Cement Co. v. Lamb, 189 P. 750; Coal Company v. Comm., 203 P. 1042; Mining Company v. Industrial Comm., 207 P. 305; Ry. Co. v. Industrial Comm. 232 P. 418; Solkowsky v. Bank, 184 N.E. 493; Ebrhart v. Accident Commission, 158 P. 193; McLaughlin v. Hahne & Co., (N. J.) 169 A. 542; Beckwith v. Spooner, 2 B. W. C. C. 398; Beckwith v. Spooner, 183 Mich. 323; Tinglestad v. Nye, et al., 161 N.W. 224; Harmon v. Wiese Company, 236 N.W. 186. The stipulation covers only the condition at the time, not future changes of condition. 28 R. C. L. 737; Chapter 124-110 R. S; Magnolia Petroleum Company v. Edgett, (Okla.) 1 P.2d 758; Drilling Company, et al. v. Pennington, (Okla.) 1 P.2d 769; Chicago B. & I. Co. v. Sabin, (Okla.) 269 P. 263; Construction Company v. Colthrop, (Okla.) 269 P. 263; Iron Works v. Sabin, (Okla.) 231 P. 851; Thomas v. Liondale, 154 A. 542.

For the respondent, there was a brief and the cause was argued orally by T. S. Taliaferro, Jr. of Rock Springs.

Reports of physicians, introduced in evidence, create doubt as to whether the injury affected loss of vision due to high blood pressure of claimant. Sec. 124-113, R. S. The petition to reopen and the demurrer thereto searched the record. Claimant cannot plead a new trial on account of newly discovered evidence under the facts in this case. Laws of 1935, Chapter 112; 34 C. J. 252, 255; Article 23, Sections 89-2301-2312, R. S.; 46 C. J. 442; Sec. 89-2301, R. S. The revisioners of 1931 excluded what was Section 5874 of C. S. 1920. Chapter 100 of the Laws of 1935 cannot be applied without making it retroactive. Sec. 124-120, R. S. 1931. The stipulation cannot be ignored. City of Chicago v. Drexel, (Ill.) 30 N.E. 779; C. J. Vol. 60, page 100; Emerick v. Hascy, (Calif.) 146 F. 695; Penn. Company Appeal, 225 Penn. 178, 73 A. 1107; Bank v. Widner, (N. Y.) 11 Paige 529; Garrett v. Hanshue, (Ohio) 42 N.E. 259; 15 R. C. L. 646. The Wyoming statutes holding awards to be judicial determinations are: Sections 124-140, R. S. as amended and 124-110, R. S. Refining Company v. George, 41 Wyo. 55. The following authorities relate to judgments by consent. 34 C. J. 516; Mason v. Mason, (Ind.) 26 N.E. 124; Continental Company v. Woolf, (Cal.) 108 P. 730. The George case was based on a stipulation. The Oklahoma cases cited by the attorney general follow an Oklahoma statute granting the Accident Commission unlimited jurisdiction as to time to reopen awards based upon changing physical conditions, and are therefore not in point. The last paragraph of Section 124-113, R. S. as amended in 1933, must be read "in pari materia" with what came after in Section 124-120. Where a court approves of and bases an award upon a stipulation, the judgment becomes res judicata as the decree of the court, and cannot be set aside, except as other decrees of the court are set aside. Workmen's compensation cases are no exception to the rule. The Oklahoma cases were considered under the Oklahoma statute prior to the amendments of 1933. The New Jersey decision in Thomas v. Liondale, (N. J.) 154 A. 542, is not that of a high appellate court. However, it is in line with the principle followed in the case of Midwest v. George, 41 Wyo. 65. The limitation period in New Jersey is two years. The cases cited by the attorney general are not in point. The brief of the attorney general does not traverse the fact that the stipulation was in the trial court treated by all parties as a part of the injured workman's petition, and that the demurrer was not addressed to the stipulation as a part of the petition. The judgment of the trial court should be affirmed.

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

OPINION

BLUME, Justice.

The parties herein will be respectively referred to as the employer and the employee. The latter, while in the employ of the former, in a coal mine, was injured on October 27, 1930. He was picking coal in his working place and a small piece of coal flew from the pick-point and embedded in his right eye, rupturing a small blood-vessel and leaving a scar. On February 16, 1931, he was awarded the sum of $ 88.33 for total disability from October 27, 1930 to December 20, 1930. On January 30, 1933, the parties entered into an agreement stating that the workman had consulted a number of eye specialists and "these specialists have agreed that said scar has caused loss of vision equal to a 50% loss of the right eye. Workman is therefore entitled to further compensation as follows: Permanent partial disability for a 50% loss of the sight of his right eye, 50% of $ 1800--$ 900 in complete and final settlement of any claims arising from said injury." On February 2, 1933 an order of award was entered by the court reading substantially as follows:

"The above matter coming on to be heard by the court on this 2nd day of February, 1933, and the court having heard the evidence finds that the workman was injured on October 27, 1930 while in the employ of the employer; that claim has been made for compensation on account of such injury; that such injury was not caused by the culpable negligence of the employee, and that said injury is described as follows: Piece of coal struck the workman's eye causing temporary total disability, for which he was compensated under the order of this court of February 16, 1931; that said injury has resulted in a permanent partial disability to the extent of the loss of one-half of the sight of the right eye, for which he is now entitled to compensation in the sum of $ 900 in final settlement, to be paid, however, in monthly instalments according to law. It is therefore ordered that said workman is hereby awarded compensation in the sum of $ 900 to be paid in monthly instalments."

The sum so awarded was paid, the last instalment of $ 50 being paid on July 3, 1934. On July 12, 1935, the workman filed a claim for an additional award, claiming that he was permanently totally disabled on account of blindness in both eyes. An amended claim called "Petition to vacate order of award together with claim for additional compensation" was filed on the 7th...