Shaul v. Colorado Fuel & Iron Co.

• Decision Date: 13 March 1934
• Docket Number: 1837
• Citation: 30 P.2d 478,46 Wyo. 549
• Parties: SHAUL v. THE COLORADO FUEL & IRON COMPANY
• Court: Wyoming Supreme Court

30 P.2d 478

46 Wyo. 549

SHAUL v. THE COLORADO FUEL & IRON COMPANY

No. 1837

Supreme Court of Wyoming

March 13, 1934

Affirmed.

For the appellant, there was a brief and oral arguments by William E Mullen of Cheyenne, and D. C. McGrew of Denver, Colorado.

The final judgment of award of September 17, 1931 was made without reservations, and was never appealed from, vacated or set aside. Section 124-140, R. S. 1931; Midwest Refining Co. v. George, 41 Wyo. 55-69. The question is unaffected by the more recent case of Midwest Refining Company v George, 44 Wyo. 25. The judgment of September 17, 1931 was paid and satisfied. The Code of Civil Procedure applies. Section 89-2101, R. S. 1931; 89-2301; 124-140, R. S. 1931; Mitter v. Coal Company, 28 Wyo. 451. A trial court may not impeach a former judgment concerning the same persons and subject-matter by dictating statements into the record at a subsequent trial of the same case. The judgment of September 17, 1931, being regular upon its face, could be modified only by appeal. Holt v. City of Cheyenne, 22 Wyo. 212. Jurisdiction to retry an issue of permanent disability may not be conferred by consent. Midwest Refining Company v. George, 41 Wyo. 55. The court was without jurisdiction to make the award of May 26, 1933. Jurisdiction to modify awards made for permanent partial disability or for permanent total disability, to conform to changes in the condition of the workman until the monthly payments have been made, is conferred by statute. Section 124-120, sub-divisions (a) and (b)--R. S. 1931. There is no evidence in the record showing a change in claimant's condition. In fact, the evidence was to the contrary. The amended claim filed on November 12, 1931, was not an application to re-open, modify or vacate, but as appears from its face, an application to amend the original claim filed on January 31, 1931. The evidence was insufficient to sustain the judgment. The physicians appointed under Section 124-133 R. S. 1931, did not file a report as required by statute. A memorandum report made by said physicians was tendered at the trial. The burden of proof was upon claimant. If the evidence is merely such that the probabilities are equal, then the fact is not established, and the party upon whom rests the burden of proof must fail. Carter Oil Co. v. Gibson, 34 Wyo. 53-59; Standard Oil Company v. Sullivan, 33 Wyo. 226. The court below did not accept claimant's evidence offered to establish permanent total disability. The judgment below is wholly unsupported by any of the evidence. It is the duty of an employer to resist attempts to malinger upon the Industrial Accident Fund of the state, and likewise it is the duty of an employer, as well as the courts, and all administrative offices connected with the administration of the work of the Workmen's Compensation Law, to protect said fund to the end that it may be devoted and used for the relief of worthy cases.

For the respondent, there was a brief by Ray E. Lee, Attorney General, O. O. Natwick, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Lee.

The general rule is that Workmen's Compensation Laws are to be liberally construed and all doubts resolved in favor of the workman. Grant v. Commission, 201 P. 438; U. S. F. & G. Co. v. Wickline (Nebr.) 170 N.W. 193; Schneider Workmen's Compensation Law, Vol. 2, 2130 et seq. An injured workman's physical condition always remains open to inquiry and never becomes res adjudicata. Winn v. Company, 193 Mich. 127; Spooner v. Beckwith (Mich.) 149 N.W. 971. Where the workman's condition becomes worse after an adjudication, the court has jurisdiction to readjust the compensation and allow an additional sum. Kano Oil Co. v. Robertson, 11 P.2d 759; West v. Postum Co., 245 N.W. 561; Puryear v. Nat. Dairy Products Corp., 182 N.E. 545; Adamson Company v. Pringle, 8 P.2d 51; Hustead v. Co., 17 P.2d 927; Bailey v. Gravel Co., 145 So. 712; Williams v. Thompson, 166 S.E. 906; Rothschild v. Marshall, 56 F.2d 415. The application made in the present case should be designated as a petition for additional compensation and considered a new proceeding. It was so considered by the court below. The employer failed to produce the evidence of physicians appointed by the court to examine claimant. The inference is that their testimony would be adverse to employer. Hines v. Sweeney, 28 Wyo. 57; 2 Schneider on Workmen's Compensation Law, 2d Ed., page 1858. The award should include benefits for a child born after the injury. Sec. 124-106-7, R. S. 1931; Routh v. Construction Co., 257 P. 721; State v. Soale, 74 N.E. 1111. Posthumous children shall inherit in the same manner as children born in the lifetime of the intestate. Sec. 88-4002, R. S. 1931; Fuel Co. v. Industrial Commission, 234 P. 697. Claimant is permanently totally disabled and should recover. Ray v. Packing Co., 119 A. 191; Carter Oil Company v. Gibson, 34 Wyo. 53; Sakamoto v. Kemmerer Coal Co., 36 Wyo. 325; Kittleson v. Hibler, 37 Wyo. 332.

William E. Mullen and D. C. McGrew in reply.

The statement that respondent should be given the benefit of every doubt and presumption, indicates that his counsel believes a doubt exists. The broad contention made that Workmen's Compensation claims are never adjudicated, but are always open to re-examination and modification, is based upon the provisions of statutes in other states, and not upon the Wyoming Statute, Section 124-140, R. S. 1931, construed in Midwest Refining Company v. George, which is to the contrary.

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

OPINION

BLUME, Justice.

This is a Workmen's Compensation case. Arthur W. Shaul, the workman herein, was employed by the Colorado Fuel & Iron Company, appellant herein, at its mines at Sunrise, Wyoming. On January 10, 1931, he was lowering coal from the surface through a shaft to the second level of the mine by the use of a hand windlass, which in some manner struck him on the left cheek, causing an apparently severe injury. Nobody seems to have witnessed the accident and the workman herein stated that he did not know how it happened. He was taken to the hospital at Sunrise conducted by the employer, remained there for about a week and then was sent to his home. There is some evidence in the case that he was unconscious or only semiconscious during the time that he was at the hospital, but a number of witnesses testified to the contrary. Later he was sent to the Corwin Hospital, also operated by the employer at Pueblo, Colorado, where he received further examination and treatment for about eight days. He was then returned to his home at Sunrise, the employer's physician at Pueblo reporting that he should be able to resume work in about six weeks. After returning to his home the workman was looked after by Dr. Graham, the employer's physician at Sunrise. He, on September 1, 1931, made a report that the workman had fully recovered. Previous thereto, and on January 30, 1931, the workman had reported the accident, stating that he had suffered temporary total disability as far as could be determined at that time. The employer also had filed a report, and the workman had been, by orders of the court entered at various times, allowed the sum of $ 75 per month, taking into consideration that he had, at the time of the accident, two minor children. On September 17, 1931, the court, reciting that claimant had recovered so as to be able to engage in gainful occupation, made an order granting him full and final compensation for his injuries in the sum of $ 203.22. This was apparently done pursuant to the report of Dr. Graham mentioned above and pursuant to an informal letter of the attorney for the employer. In any event, the workman appears not to have been present or to have known anything about it. On October 10, 1931, the employee filed what is called an application and claim for award under the compensation law, without purporting to be any amendment to his prior claim, asserting therein that the injury had resulted in permanent disability. On November 12, 1931, an amended claim for compensation was filed on behalf of the workman, alleging that the latter had suffered severe, lasting and permanent injury. A hearing on the application was requested. Subsequently, and on December 26, 1931, the employer filed objections to the amended claim for compensation, alleging that the workman had fully recovered and that no sufficient facts were stated to constitute a ground for the vacation of the order of the court made on September 17, 1931, and alternatively asking that the court direct the appointment of physicians licensed under the laws of the State of Wyoming to examine the workman. On December 31, 1931, the court overruled the objections filed by the employer and appointed Doctors George P. Johnston and Walter M. Lacey to examine the workman on behalf of the employer. Subsequently, on October 24, 1932, the employer filed a motion to dismiss the amended claim for compensation on the ground that the court had no jurisdiction in the case on account of the fact that a final order of award had been made on September 17, 1931, and an objection to the jurisdiction of the court on the same ground was also made herein on behalf of the employer at the beginning of the trial subsequently had. That trial took place on March 4, 1933, and the court awarded to the workman an additional compensation of $ 2000, payable at the rate of $ 60 per month, on the finding that the injuries sustained by the workman were such as to result in permanent partial disability of the workman to the extent of 50 percent of his earning capacity. From this award the employer has appealed.

1. The first point urged herein is that the court had no...