Standard Oil Co. of Indiana v. Buchanan

• Decision Date: 21 November 1928
• Docket Number: 1556
• Citation: 271 P. 876,39 Wyo. 372
• Parties: STANDARD OIL CO. OF INDIANA v. BUCHANAN [*]
• Court: Wyoming Supreme Court

271 P. 876

39 Wyo. 372

STANDARD OIL CO. OF INDIANA v. BUCHANAN ^[*]

No. 1556

Supreme Court of Wyoming

November 21, 1928

ERROR to District Court, Natrona County, BRYANT S. CROMER, Judge.

Proceedings under the Workmen's Compensation Law by Syd Buchanan employee, opposed by the Standard Oil Company of Indiana employer. From a judgment awarding compensation, the employer brings error. Heard on motion to dismiss the petition in error.

R. R Rose, for the motion.

Compensation cases are reviewable on proceedings in error. 4328 C. S Chapter 124, Laws 1925. The application for a new trial must be made within 10 days after verdict or decision, unless the party in unavoidably prevented from filing the same. 5872 C. S. Supreme Court Rule 13. No motion for a new trial was filed as required by statute. The case is not reviewable. Defendant in error has moved dismissal of the proceedings in error and for attorney fees and interest in accordance with Sec. 6372 C. S. The record discloses that there was no reasonable cause for the institution of this proceeding in error; the award made below is substantially the amount provided for, and in fact, agreed upon by counsel for plaintiff in error.

Hagens and Murane, contra.

The right to appeal is not limited to a judgment or final order as provided in Secs. 6369-6371 C. S. Any order made under the compensation law is appealable and no motion for a new trial is necessary. There is no trial had in the first place. 4327 C. S. No issues are made up between the parties as defined by Sec. 5721. There can be no trial without issues, and no new trial is provided for in a compensation case. It is not permissible to file a motion for a new trial. 4328 C. S. An order of award is a final order. Sec. 4329 C. S. Since warrants for compensation may be issued against the Industrial Accident Fund, provisions of the criminal and civil codes are not applicable to appeals in compensation cases. The only costs taxable in compensation cases are fees for witnesses and jury costs. 4327 C. S. It would be a dangerous precedent if the workingmen's counsel in this case should be awarded $ 300.00 in attorneys' fees and 5% upon the amount of the award, since the utmost compensation that can be paid to an attorney in a compensation case is $ 50.00. 4340 C. S. The case should be heard upon the merits of the award and modified to allow the workingman for the loss of one foot, instead of compensation for loss of a leg below the knee.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

This is a proceeding under the Workmen's Compensation Law, in which the court allowed to Syd Buchanan, an employee of the Standard Oil Company of Indiana, the sum of $ 1,200 as compensation for the loss of his left leg below the knee. Final judgment was entered herein on June 6, 1928. From this judgment the company has brought proceedings in error. The trial court extended the time within which to bring these proceedings, as it was authorized to do under Section 4328, Wyo. C. S. 1920. A motion for a new trial was filed on July 19, 1928, and was overruled on the same date. A bill of exceptions was presented to the trial judge and allowed on August 28, 1928. This bill contains the motion for a new trial above mentioned.

The petition in error filed herein complains of the overruling of the motion for a new trial; of the fact that the judgment of the court is not sustained by sufficient evidence; and of other matters, all of which occurred during the trial of the case. If this were an ordinary civil case, accordingly, a motion for a new trial would have been required to be filed within ten days after the making of the final order, in accordance with Rule 13 of this court, and as held in Schmidt v. First National Bank, 29 Wyo. 260, 212 P. 651; W. Sheep Company v. Pine Dome Oil Co., 32 Wyo. 61, 228 P. 799, and other cases. Counsel for the employe insists that this rule applies to cases involving a workman's compensation, and has, therefore, filed a motion to dismiss this case. The motion is resisted, counsel for the employer claiming that the rule does not apply to cases like this.

It is held in the case of Union Sanitary Mfg. Co. v. Davis, 63 Ind. 548, 114 N.W. 872, that no such motion for a new trial is contemplated by the Workmen's Compensation Act in that state. It may, however, be noticed in examining the case that the statutes of Indiana provide for a review by the industrial board, which hears compensation cases, within seven days from the date of the award, and it would seem that the application for such review substantially takes the place of a motion for a new trial in other cases. See also Corvi v. J. R. Crowe Coal & Mining Co., 119 Kan. 244, 237 P. 1056. No such application for review is provided for under the laws of this state, except in the case of the State Treasurer, who, according to Section 7, Ch. 111, Session Laws of 1927, is authorized to file a petition for re-opening the award made within thirty days after the date thereof; and by the same law he is given the right to appeal to the Supreme Court from any award made, either subsequent to the petition above mentioned or without reference to it. It may be that a motion for a new trial need not be filed in order to appeal to this court from an order made pursuant to such petition to re-open. But it is unnecessary to decide that point, inasmuch as that law is not applicable in other cases. The law applicable in this case is Section 4328, Wyo. C. S. 1920, amended by Section 2, Ch. 124, Session Laws 1925, which provides as follows:

"Any order given and made in any investigation or hearing by a Court or Judge pursuant to the provisions of this Chapter shall be reviewable by the State Supreme Court on proceedings in error in the manner prescribed by the code of civil procedure; provided, however, that the petition in error, bill of exceptions and record on appeal must be filed in the Supreme Court within thirty days from the date of decision or order on motion for new trial by a Court or Judge, unless the time be extended by order of Court or Judge," etc.

This is the only Section in the Workmen's Compensation Act which has any application in the case at bar, and under its express provisions the code of civil procedure applies to appeals taken in cases within its scope, except as the act itself makes provisions to the contrary. The section quoted seems to contemplate that a motion for a new trial may be filed, and that if filed, the time for appellate proceedings shall commence to run from the date of the decision on such motion. It would seem to be clear that the motion mentioned in the foregoing Section of the statute is the motion for a new trial provided for in the code of civil procedure, namely the motion required to be filed within ten days from the time of the making of the final order. If this were not so, an unlimited time would be given in which to institute appellate proceedings; and that is clearly contrary to the general intendment of the Workmen's Compensation Act, which contemplates speedy adjustment of claims under it. There is nothing...