Pearce v. North Dakota Workmen's Compensation Bureau
| Decision Date | 04 May 1938 |
| Docket Number | 6535 |
| Citation | 279 N.W. 601,68 N.D. 318 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Where there is no settled statement of the case, the appellate court will assume that the trial court decided all questions of fact properly and will determine only whether or not the judgment entered and the conclusions of law announced are supported by the findings of fact.
2. Where there has been a decision by this court upon an appeal and such decision has become final, it is the law of the case, and, unless there have been new proceedings in the cause, the appellant cannot again bring the same case up for review. The decision is conclusive on all subsequent appeals.
3. Where such decision has become the settled law of the case and the case on appeal has been remanded to the district court for further proceedings in accordance with law, the appellant, on subsequent appeal, can question only whether the judgment entered on remand is in accordance with the direction of this court.
Appeal from District Court, Burleigh County; Fred Jansonius, Judge.
Proceeding by H. O. Pearce under the Workmen's Compensation Act. From an adverse judgment, the North Dakota Workmen's Compensation Bureau appeals.
Judgment affirmed.
Alvin C. Strutz, Attorney General, Milton K. Higgins and A. M. Kuhfeld, Assistant Attorneys General for appellant.
Decision on former appeal is conclusive on all points presented and decided and all points directly presented by the record. 4 C.J. p. 1096, § 3075.
The doctrine of the law of the case does not preclude the court from reviewing its own decision nor apply to a phase of the case not before the court at the time the decision was rendered. Jessup v. Nixon, 199 N.C. 122, 154 S.E. 18.
The doctrine of the law of the case is limited to rulings on questions actually presented and considered on the former appeal. Central Nat. Bank v. Peck (Cal.) 59 P.2d 599.
Decision of the Supreme Court upon a former appeal becomes "law of the case" only as to actual questions then determined. Helfrich v. Baxter (Neb.) 267 N.W. 922.
Where there is an apparent error, appellate court will reverse its decision on former appeal. 4 C.J. 1099.
Where one party appeals and other party later brings up another point on a second proceeding, the fact that he could have raised it by cross-appeal on the first proceedings does not bar him. State v. N.P.R. Co. 99 Minn. 280, 109 N.W. 238; McKay v. Mayes, 16 Ky. 826, 32 S.W. 606; Brennan v. State Bank, 10 Colo.App. 368, 50 P. 1076.
The appellate court will not, even on the consent of both parties, try a case in equity on its merits without having before it all the evidence on which the case was tried in the first instance. 4 C.J. 727; Eaken v. Campbell, 10 N.D. 416, 87 N.W. 991; Little v. Phinney, 10 N.D. 351, 87 N.W. 593; W.T. Raleigh Medical Co. v. Laursen, 25 N.D. 63, 141 N.W. 64; Prieve v. Prieve, 43 N.D. 509, 175 N.W. 732; Farmers' Educational & Co-op. Union Elevator Co. v. Irons, 64 N.D. 370, 252 N.W. 380.
Jacobsen & Murray, for respondent.
If appellant is satisfied with the findings of fact made by the trial court, but appeals from the judgment entered thereon, he has a right to such appeal without demanding a retrial of any issue of fact. Christ v. Johnstone, 25 N.D. 6, 140 N.W. 678; State Bank v. Hileman, 31 N.D. 417, 154 N.W. 532; Lunde v. Irish, 50 N.D. 312, 195 N.W. 825.
Upon the expiration of six months after the service of notice of entry of judgment, the jurisdiction of the trial judge ceases. Bevey-Shute Lumber Co. v. Donahue, 43 N.D. 247, 175 N.W. 205; Gohl v. Bechtold, 37 N.D. 141, 163 N.W. 725; Tuttle v. Pollock, 19 N.D. 308, 123 N.W. 399; Folsom v. Norton, 19 N.D. 722, 125 N.W. 310.
Judgment entered in county clerk's office, pursuant to order of appellate division could not be reviewed by appellate division because of constituting its own judgment. Macomber v. Sterling, 245 N.Y.S. 657; Phelps v. G.N.R. Co. 227 P. 65.
If, upon a cause being remanded with directions to enter judgment in accordance with the opinion of the Supreme Court, the court below enters judgment in substantial conformity with the directions of the appellate court, its action will not be disturbed on a second proceeding in error. First Nat. Bank v. Keys, 113 P. 715; Ramsey v. Bryan, 289 P. 695; Wiswald v. Armory Realty Co. 251 N.W. 450; Texas Co. v. Moyier, 29 P.2d 873; Bradley v. Norris, 69 N.W. 624.
Generally all questions involved and which might have been raised on former appeal are concluded by former decision. Wilcox v. Hedwell, 243 N.W. 711; Scottish American Mortg. Co. v. Reeve, 7 N.D. 552, 75 N.W. 910.
Burr, J. Christianson, Ch. J., and Nuessle and Morris, JJ., and Englert, Dist. J., concur. Mr. Justice Sathre, being disqualified, did not participate, Hon. M. J. Englert, Judge of the First Judicial District, sitting in his stead.
On January 28, 1936, the plaintiff filed with the Workmen's Compensation Bureau his claim for compensation for an injury which he claimed he suffered on March 25, 1935 during the course of his employment by the International Harvester Co. The bureau rejected the claim on the ground that it had not been filed within sixty days after the injury was received and determined that no reasonable cause had been shown why he should be allowed to file his claim after the expiration of this sixty-day period, even though it was filed within the period of the one-year limitation.
From this rejection the plaintiff appealed to the district court. Here the bureau was represented by counsel and testimony was taken with reference to the claim of injury, etc. The district court made findings of fact to the effect that the plaintiff was in the employ of the International Harvester Company on March 25, 1935 and in the course of his employment received an injury which resulted in a partial disability due to the aggravation of a "prior disease as may be reasonably attributable to said injury"; and that the "proportion of disability due to said aggravation is hereby found to be 50% or one half of the weekly compensation for total disability, same being one half of $ 20 per week, towit $ 10 per week from the date of said stroke of paralysis, to-wit March 25, 1935." The court also found that because of the injury the plaintiff "did not possess sufficient mental power and faculties to realize the necessity for filing a claim with the defendant within sixty days after the injury or any other time, and that when he did partially recover his mental faculties, which was sometime subsequent to January 5th, 1936, he concluded that he had no claim against the bureau in that the Workmen's Compensation Bureau only insured against violent external injury, and not occupational disease." The court then finds that as soon as plaintiff fully recovered his faculties he filed his claim, which was within three weeks thereafter. If defendant desired to furnish opposing testimony it had the opportunity so to do.
From the findings the court concluded that the "plaintiff had and has a meritorious claim for compensation insurance to the extent of 50% of weekly compensation for total disability, to-wit 50% of $ 20 per week, same being $ 10 per week from the date of said injury. . . ." But the court also concluded it had no jurisdiction to review the discretion of the bureau in disallowing the claim on the ground that it was not filed within the sixty-day period, and therefore the court was compelled to dismiss the action. Judgment was rendered accordingly and the plaintiff appealed.
The basis of the appeal, as is shown in 67 N.D. 512, 274 N.W. 587, was in effect that the court erred in not entering judgment for the plaintiff and in deciding that the court was without power to review the discretion of the bureau.
That appeal was upon the record alone. There was no attempt by either party to have a review of the testimony in the case. The defendant filed no cross statement of errors. It hazarded its case solely on the issue that its discretion was not reviewable, and made no attempt to show the findings were erroneous. The appeal was heard solely upon the record presented by the plaintiff.
In his brief the plaintiff sought to review the action of the district court in finding that the plaintiff was entitled to but fifty per cent of total disability; but this court held that as the appeal was taken solely upon the findings as made by the trial court, plaintiff could not litigate the question of the extent of the disability.
Consequently, this court held the appeal was submitted on the findings, that neither side questioned them and therefore both accepted them, but that the lower court was in error in holding the discretion of the bureau in refusing to permit the appellant to file his claim after the expiration of sixty days was not reviewable. We held such discretion was reviewable and that a legal discretion had not been exercised. The decision of this court was that "the decision of the lower court that the plaintiff is not entitled to participate in the fund is reversed and the case is remanded for further proceedings in accordance with law." Pearce v. North Dakota Workmen's Comp. Bureau, 67 N.D. 512, 274 N.W. 587.
Immediately thereafter the defendant sought to appeal from the same judgment of the lower court -- a judgment in its favor. As shown in Pearce v. North Dakota Workmen's Comp Bureau, ante, 78, 276 N.W. 917, the defendant, on the appeal taken by the plaintiff, had made no attempt to show that the judgment of the lower court was incorrect as to the injury and its extent or that the findings were inaccurate. Neither was there any petition for rehearing filed by the...
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