Schoepke v. Alexander Smith & Sons Carpet Co.
| Decision Date | 14 May 1971 |
| Docket Number | No. 42497,42497 |
| Citation | 290 Minn. 518,187 N.W.2d 133 |
| Parties | Ernest J. SCHOEPKE, Relator, v. ALEXANDER SMITH & SONS CARPET COMPANY et al., Respondents. |
| Court | Minnesota Supreme Court |
James B. Lund, William H. Eckholdt, and Y. D. Wada, Minneapolis, for relator.
Robb, Van Eps & Gilmore, and Michael D. Aafedt, Minneapolis, for respondents.
Heard before KNUTSON, C.J., and NELSON, OTIS, ROGOSHESKE, and ODDEN, JJ.
Certiorari upon the relation of Ernest J. Schoepke, employee, to review an order of the Workmen's Compensation Commission denying a petition to vacate an award on stipulation against Alexander Smith & Sons Carpet Company, employer, and Liberty Mutual Insurance Company, insurer.
On December 21, 1949, Schoepke allegedly sustained an injury to his back arising out of and in the course of his employment with Alexander Smith & Sons Carpet Company. On September 8, 1950, a stipulation of settlement among these parties was filed with the Workmen's Compensation Commission providing for payment of 5 weeks of temporary total disability, 30 weeks of permanent partial disability, representing a 10-percent permanent partial disability, and medical expenses, all in connection with the back injury. The Workmen's Compensation Commission destroyed its file 18 years later pursuant to Minn.St. 175.36.
On October 8, 1969, Schoepke filed a petition to vacate the earlier award. The matter was heard by the commission on March 9, 1970, and on March 20 the commission entered an order denying the petition to vacate. In an attached memorandum the commission summarized its reasons for denial of the petition as follows:
'In view of the denial of primary liability (prior to the settlement), continued working for many years, gradually changing condition, lack of specific information by reason of destruction of records, we do not believe that an award covering a compromise settlement for an injury occurring approximately 20 years ago should be set aside.'
Certiorari issued from this court on April 9, 1970, raises five issues: (1) Whether Minn.St. 175.36 1 authorizes the destruction of commission records; (2) whether destruction of records precludes a commission which destroyed the records from sitting in judgment on a case based on them; (3) whether § 175.36 is an unconstitutional impairment of contract rights, contrary to Minn.Const. art. 1, § 2; (4) whether destruction of records pursuant to Minn.St. 175.36 deprives relator of property without notice and opportunity to be heard; and (5) whether the Workmen's Compensation Commission abused its discretion in refusing to vacate the 1950 award based on stipulation.
Although Minn.St. 175.36 is not drafted as clearly as one might wish, we nonetheless have no difficulty holding that it authorizes the destruction of commission records after their retention for 18 years.
Relator's second issue, which in essence questions the propriety of the commission's sitting in judgment on a matter wherein the records have been destroyed when in fact it was responsible for their destruction, is advanced without discussion or supporting authority, contrary to Rule 128.01(4), Rules of Civil Appellate Procedure. An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection. Knox v. Knox, 222 Minn. 477, 25 N.W.2d 225; Kaehler v. Kaehler, 219 Minn. 536, 18 N.W.2d 312; Ranum v. Swenson, 220 Minn. 170, 19 N.W.2d 327. As we are unable to perceive prejudicial error in this issue upon mere inspection, it is deemed waived.
Issues 3 and 4 concern the constitutionality of an act of the legislature. When the state is not a party, a prerequisite to consideration of such issues in this court is notification to the attorney general. Rule 144, Rules of Civil Appellate Procedure. Here, the record does not disclose that such notice was ever given. As a consequence,...
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...her lien. But she neither cites authority addressing "judicial preclusion" nor defines the term. Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519, 187 N.W.2d 133, 135 (1971) (assignment of error based on "mere assertion" and not supported by argument or authority in appella......
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