Rivera v. Johnston, No. 7630

CourtUnited States State Supreme Court of Idaho
Writing for the CourtGIVENS; HOLDEN; Between the date of the original opinion and the rehearing, the Honorable EDWIN M. HOLDEN, C. J., resigned and the Honorable CHARLES F. KOELSCH; GIVENS; PORTER, TAYLOR, and KEETON, JJ., and KOELSCH; This opinion was completed and agre
Citation71 Idaho 70,225 P.2d 858
Decision Date26 June 1950
Docket NumberNo. 7630
PartiesRIVERA v. JOHNSTON et al.

Page 858

225 P.2d 858
71 Idaho 70
RIVERA

v.
JOHNSTON et al.
No. 7630.
Supreme Court of Idaho.
June 26, 1950.
On Rehearing Jan. 9, 1951

[71 Idaho 72]

Page 859

Robert E. Smylie, Atty. Gen., Glenn A. Coughlan, Asst. Atty. Gen., for appellant.

Walter M. Oros, Boise, for respondents.

GIVENS, Justice.

Appellants appealed because any award was made, and respondent cross-appealed because the amount was too low, from an award of the Industrial Accident Board to respondent, widow of the deceased employee, for $200 burial expenses and $1,000 compensation.

[71 Idaho 73] Appellants assign as errors: the Board's refusal to correct the transcript by striking out of its minute entry the words, 'Mr. Musgrave (Manager of State Insurance Fund) withdrew formal answer and admitted the allegations of claimant's petition,' and substituting therefor, 'Mr. Musgrave admitted the allegations of Paragraph VII (hereinafter quoted) of claimant's petition; that the findings of fact are not supported by the evidence; and the Board erred in ruling as a matter of law, claimant was entitled to compensation death benefits.'

Appellants refer to this recital in the Board's Order settling the transcript: 'Whereas the Board has considered and denied a purported objection therto filed February 23, 1950, by defendants, which objection appears to be in fact in the nature of an untimely motion for relief from a stipulation now considered by defendants to have been unwisely made'. But this does not disclose appellants requested the Board to correct the transcript, and no such application or any showing in support thereof is made herein. Such assignment is, therefore, too nebulous to be considered. Carey v. Lafferty, 59 Idaho 578 at 583, 86 P.2d 168.

The pertinent parts of the record before us, at the most, consist of: the employer's notice of death, stating:

'(i) Data of Death--October 28th--Body discovered Oct. 29.

* * *

* * *

'(n) Describe in full how accident happened--Dead Employee was found Friday morning Oct. 29 by Burt Wolfkiel while riding range for cattle. Apparent cause of death was a heart attack.

* * *

* * *

'(p) Attending Physician or Hospital where sent. Name and Address--Investigation made & body taken by Elmore County Corner, Mt. Home, Ida.

* * *

* * *

'(r) Give Names and Addresses of Relatives and Dependents If Known.

Names Mrs. Joe Rivera

Relationship Wife

Address 411 Main St.

'Date of this Report Nov. 1, '48'

Respondent's petition for hearing, with claim for compensation attached, stating among other allegations: that deceased received a personal injury arising out of and in the course of his employment October 28, 1948, resulting in his death the same day; that the employer was notified of said accident on or about Novermber 1, 1948; that no compensation agreement had been reached; and 'That at the time of said accident and injury and death, Mrs. Anna B. Rivera was married to said Joe Rivera and entirely dependent upon him for support. That claimant has never attended school and is unable to coherently speak the English language and reads the same with difficulty and is entirely without relatives or other persons or representatives legally qualified under the provisions of the Workmen's Compensation Law to make claim in [71 Idaho 74] her behalf within the year subsequent to said accident and death, and upon said grounds alleges her inability and incompetency to make claim for Workmen's Compensation benefits within the time required by law.' That claimant was informed defendants were ready to make a voluntary payment to claimant of $1200 in full discharge

Page 860

of their liability; prayed for a hearing, and that an award of $1200 cash for workmen's compensation award for death of her husband be made; and attached as exhibits claim for compensation, marriage license and certificate, and receipt for funeral expenses of $425.

Appellants, employer and his insurance carrier, State Insurance Fund, filed an answer verified by the manager of the Fund and signed by counsel therefor, denying all allegations of the petition; except that deceased was in covered and insured employment, respondent's dependency, decedent's rate of pay, that no compensation agreement had been reached and that no claim for compensation, as required by Section 72-402, I.C., had been filed within a year of the death (i. e., until December 4, 1949.

The Board's minute entry dated January 9, 1950, is:

'By stipulation of the parties this matter came on before the full board for hearing, notice of time and place being waived. Walter M. Oros appeared for the claimant, and Walter C. Musgrave, Manager of the State Insurance Fund, appeared on behalf of the Fund. Mr. Musgrave withdrew formal answer and admitted the allegations of claimant's petition.

'Whereupon the Board ordered an award entered in accordance with the prayer of the petition. * * *.'

The Board's findings, as material, were:

'Pursuant to stipulation of the above named parties, in which due notice and time and place of hearing this matter were waived, the same came on regularly for hearing in the offices of the Industrial Accident Board at the Capitol in the City of Boise, County of Ada, State of Idaho, before the Industrial Accident Board on the 9th day of January, 1950. Claimant was not present but was represented by her counsel, Walter M. Oros, Esq.; defendants were represented by Walter C. Musgrave, manager of the State Insurance Fund, surety, who, before the Board, orally amended defendants' answer, admitting all the allegations of claimant's petition, and the matter was thereupon submitted for decision, and the following is hereby made:

'I

'That on October 28, 1948, Joe Rivera was employed as a sheepherder by E. C. Johnston in Elmore County, Idaho, and on said date, State Insurance Fund was surety for said defendant under the Workmen's Compensation Law of the State of Idaho. That said employment was covered under said law.

* * *

* * *

[71 Idaho 75] III

'That on October 28, 1948, the said Joe Rivera, already afflicted with an infirm, heart, received a personal injury by accident arising out of and in the course of his employment with his employer, and the combination, said heart condition and accident, resulted in his death on said date, all of which said defendants have admitted.

* * *

* * *

VIII

'That defendants have offered claimant, because of the premises, the sum of $1200.00 cash in full discharge of their liability if any, under the law.'

Rulings of Law

'Claimant, Mrs. Anna B. Rivera, is entitled to an award against the defendants, E. C. Johnston and State Insurance Fund, and each of them, for compensation death benefits in the sum of $200.00 cash for burial and $1000.00 cash.'

Much was said in oral argument about, and inferences or implications were sought to be presented which are not based on the record before us. However, we are restricted to and must decide the case on the record.

The statute of limitations is a personal privilege which the law gives to the debtor. Sterrett v. Sweeney, 15 Idaho 416, 98 P. 418, 20 L.R.A., N.S., 963, 128 Am.St.Rep. 68. It must be pleaded or interposed to be taken advantage of and if not raised will be deemed abandoned. Frantz v. Idaho Artesian Well etc. Co., 5 Idaho 71,

Page 861

46. P. 1026; McLeod v. Rogers, 28 Idaho 412, 154 P. 970. The running of the statute does not deprive the tribunal of jurisdiction, it merely bars relief. Anderson v. Ferguson, 56 Idaho 554, 57 P.2d 325; Fortner v. Cornell, 66 Idaho 512 at 517, 163 P.2d 299.

In Moody v. State Highway Dept., 56 Idaho 21 at 26, 48 P.2d 1108, at 1110, the statutory bar was raised by the pleadings and the court expressly did not consider whether it could be waived: 'We repeat that appellants having pleaded the bar of the statute (section 43-1202, supra), and no claim for compensation having been made and served upon appellant State Highway Department (employer) within a year after the accident, it is unnecessary to determine whether that statute is mandatory, or can be waived by failure to plead it, for the reason that, in either case, respondent could not recover against his employer.'

Sections 72-901, 902, 903, 904 and 909, I.C. give the State Insurance Fund manager complete power over the Fund and settlements thereby. He thus had power to bind the Fund, Telford v. Bingham Co. Farmers Mut. Ins. Co., 52 Idaho 461, 16 P.2d 983; Bales v. General Ins. County of America, 53 Idaho 327, 24 P.2d 57, which has the status of a private insurance company. Brady v. Place, 41 Idaho 747 at 755, 242 P. 314, 243 P. 654; Burum v. [71 Idaho 76] State Compensation Ins. Fund, Cal.App., 169 P.2d 256 at 260; and Id., 30 Cal.2d 575, 184 P.2d 505 at 510.

Statutes of limitations are applicable in equity and to proceedings. Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949, Section 5-240 I.C. 'Process and procedure under this act [Workmen's...

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19 practice notes
  • State ex rel. Williams v. Musgrave, No. 8981
    • United States
    • United States State Supreme Court of Idaho
    • February 2, 1962
    ...and occupies a similar status. Atwood v. State of Idaho, Dept. of Agriculture, 80 Idaho 349, 330 P.2d 325; Rivera v. Johnston, Page 785 71 Idaho 70, 225 P.2d 858; Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654; Gilmore v. State Comp. Ins. Fund, 23 Cal.App.2d 325, 73 P.2d In support of......
  • Muench v. Paine, No. 139
    • United States
    • United States State Supreme Court of Idaho
    • January 16, 1970
    ...of such issues reserved for a future case. Branson v. Firemen's Retirement Fund, 79 Idaho 167, 312 P.2d 1037 (1957); Rivera v. Johnston, 71 Idaho 70, 225 P.2d 858 (1951); Frisbie v. Sunshine Mining Co., 93 Idaho 169, 457 P.2d 408 We come then to the central issue of whether the statutes of ......
  • Lanning v. Sprague, No. 7643
    • United States
    • United States State Supreme Court of Idaho
    • February 2, 1951
    ...not be considered on appeal, as this court is restricted to and must decide the case on the record. Rivera v. Johnston, 71 Idaho ----, 225 P.2d 858. The defendant urges that plaintiffs objected to a vacation of a portion of Locust Street, and asserts that such vacation would have mitigated ......
  • Lake v. State, No. 7592
    • United States
    • United States State Supreme Court of Idaho
    • January 29, 1951
    ...court has consistently held that an injured workman is entitled to the full compensation provided by the law. Rivera v. Johnston, Idaho, 225 P.2d 858; Hansen v. Independent School Dist., etc., 57 Idaho 297, 65 P.2d 733. The law itself provides: 'No contract, rule, regulation or device whats......
  • Request a trial to view additional results
19 cases
  • State ex rel. Williams v. Musgrave, No. 8981
    • United States
    • United States State Supreme Court of Idaho
    • February 2, 1962
    ...and occupies a similar status. Atwood v. State of Idaho, Dept. of Agriculture, 80 Idaho 349, 330 P.2d 325; Rivera v. Johnston, Page 785 71 Idaho 70, 225 P.2d 858; Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654; Gilmore v. State Comp. Ins. Fund, 23 Cal.App.2d 325, 73 P.2d In support of......
  • Muench v. Paine, No. 139
    • United States
    • United States State Supreme Court of Idaho
    • January 16, 1970
    ...of such issues reserved for a future case. Branson v. Firemen's Retirement Fund, 79 Idaho 167, 312 P.2d 1037 (1957); Rivera v. Johnston, 71 Idaho 70, 225 P.2d 858 (1951); Frisbie v. Sunshine Mining Co., 93 Idaho 169, 457 P.2d 408 We come then to the central issue of whether the statutes of ......
  • Lanning v. Sprague, No. 7643
    • United States
    • United States State Supreme Court of Idaho
    • February 2, 1951
    ...not be considered on appeal, as this court is restricted to and must decide the case on the record. Rivera v. Johnston, 71 Idaho ----, 225 P.2d 858. The defendant urges that plaintiffs objected to a vacation of a portion of Locust Street, and asserts that such vacation would have mitigated ......
  • Lake v. State, No. 7592
    • United States
    • United States State Supreme Court of Idaho
    • January 29, 1951
    ...court has consistently held that an injured workman is entitled to the full compensation provided by the law. Rivera v. Johnston, Idaho, 225 P.2d 858; Hansen v. Independent School Dist., etc., 57 Idaho 297, 65 P.2d 733. The law itself provides: 'No contract, rule, regulation or device whats......
  • Request a trial to view additional results

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