Tebbs v. Denmark Light & Tel. Corp.

• Decision Date: 21 October 1941
• Docket Number: 45675.
• Citation: 300 N.W. 328,230 Iowa 1173
• Parties: TEBBS v. DENMARK LIGHT & TELEPHONE CORPORATION.
• Court: Iowa Supreme Court

300 N.W. 328

230 Iowa 1173

TEBBS v. DENMARK LIGHT & TELEPHONE CORPORATION.

No. 45675.

Supreme Court of Iowa.

October 21, 1941

Appeal from District Court, Lee County; J. R. Leary, Judge.

The plaintiff, as the dependent widow of a deceased employee, who had been receiving disability compensation under a memorandum of agreement with his employer, after the death of said employee, made application for and procured judgment against the defendant, under section 1465 of the 1939 Code of Iowa. Defendant's motion to set aside the judgment was denied and defendant has appealed.

Reversed.

M. A Walsh and H. Cosgrove Walsh, both of Burlington, for appellant.

Johnson, Martin, Johnson & Phelan, of Ft. Madison, for appellee.

BLISS Justice.

Burt Tebbs, while employed as a lineman by the defendant, received burns, on October 16, 1937, from a wire carrying a current of 2,300 volts, which made necessary the amputation of his right hand, and of his left arm above the elbow. He and the defendant entered into a memorandum of agreement, as provided by section 1436 of the Code, in which it was stipulated that he should receive $7.03 a week from November 8, 1937, for a total disability period of 400 weeks, or until terminated in accordance with the provisions of the Workmen's Compensation Laws, Code 1939, § 1361 et seq. This agreement was approved by the Industrial Commissioner. Tebbs died on June 24, 1939. On July 8, 1940, the plaintiff filed application in the office of the Clerk of the District Court of Lee County, alleging the above-stated facts, and that she was the surviving spouse of Burt Tebbs, and prayed for judgment in accordance with the memorandum of agreement and all papers in connection therewith on file in the Commissioner's office. Judgment, as prayed, on an ex parte hearing, without notice to defendant, was entered by the court on the same day. On motion and petition of defendant, an order was entered by the court setting this judgment aside. On October 29, 1940, plaintiff filed an " Amended and Substituted Application" asking judgment as in her original application. On October 31, 1940 without notice to or representation by the defendant judgment was entered for plaintiff and against the defendant for $294.48 with interest at 6 per cent from July 6, 1940, and for $7.03 a week from that date for 157 weeks. The Clerk of the court mailed a notice of the judgment entry to defendant, who filed motion and application, supported by affidavits and various exhibits, to set aside the judgment. On November 15, 1940 the court entered an order and judgment denying the relief prayed for. Defendant has appealed from these judgments.

Plaintiff's amended and substituted petition alleged the employment and injury of Burt Tebbs, the execution of the memorandum of agreement, his death, her survivorship as his widow, the payment of $583.49 to him as compensation during his lifetime, and the sum of $133.57 to her as his dependent widow, and prayed for judgment in accordance with the memorandum of agreement and papers filed in connection therewith, certified copies of which were made a part of the pleading. These exhibits consisted of a certificate of the Industrial Commissioner, dated May 9, 1940, and the following papers, referred to therein as being filed in his office: (1) a report of the accident filed October 26, 1937, which also stated that he was married, and had two children under sixteen years of age; (2) the memorandum of agreement; (3) a certified copy of the certificate of death from the Iowa State Department of Health, containing the attending doctor's certificate stating: " I attended deceased from May 24, 1939 to June 24, 1939. I last saw him alive on June 23, 1939, death is said to have occurred on the date stated above, at 2 a. m. The principal cause of death and related causes of importance in order of onset were as follows: Carcinoma of lungs. Contributory causes of importance not related to principal cause: Broncho-pneumonia. Date of onset 6-21-39. * * * Was disease or injury in any way related to occupation of deceased? No." ; (4) " Employer's report of workmen's compensation benefit payments made in this case" stating the payment of $583.49 to Tebbs, the payment of $133.57 to his widow, and the payment of $594.90 for hospitalization, doctor's services, and drugs; (5) the receipt of plaintiff showing total compensation to the employee and herself of $717.06.

The certificate of the Commissioner, above mentioned, referred briefly to each of the other papers, which were certified and attached. With respect to the memorandum of agreement, the Commissioner stated:

" The department has heretofore, for many years last past, interpreted the memorandum of agreement as settling two propositions, the employment contractual relation and the injury as one arising out of and in the course of the employment, leaving the question with reference to extent of disability open for adjustment in accordance with the facts, providing that application therefor is made within the period of the statute of limitations as provided by section 1457."

With respect to the certificate of the attending physician as to the cause of death, the Commissioner stated:

" The death certificate thus referred to among other things recites that death was due to carcinoma of the lungs, and the contributing factor was broncho-pneumonia, but we have no other evidence of record showing or tending to show that the supposed affliction as the immediate cause of death was due to the injury recited in the memorandum of agreement. We are therefore unable to certify any record showing or tending to show the connection between the immediate cause of death and the injury."

The " Motion and Petition" of the defendant to set aside the judgment is of such length that we may only summarize it. It alleged, in substance: that plaintiff was without legal right to any judgment in any amount; that defendant was given no opportunity to defend; that the judgment was erroneously and wrongfully rendered without legal authority or jurisdiction; that Code section 1465, under which the judgment purported to be rendered, authorized a judgment or decree only " in accordance" with certified copy of the order or decision of the Commissioner, award of arbitrators, memorandum of agreement, and " all papers in connection therewith" ; that the memorandum of agreement provided the weekly payments should be made " until terminated in accordance with the provisions of the Workmen's Compensation Law" ; and, that under the alleged facts appearing in the Commissioner's certificate and " other papers", the plaintiff was not entitled to a judgment against defendant, under the provisions of Code section 1392, paragraph 5, to wit: " Where an employee is entitled to compensation under this chapter for an injury received, and death ensues from any cause not resulting from the injury for which he was entitled to the compensation, payments of the unpaid balance for such injury shall cease and all liability therefor shall terminate." (Italics ours); that, as shown by the certificate of the Commissioner, he had made no finding of fact as to the cause of the death of the employee or its connection with the compensated injury and there was no basis, in the certificate or other papers certified, for the judgment rendered.

The " Motion and Petition" further alleged: that the finding of the court that the plaintiff was the surviving spouse was an encroachment upon the exclusive fact-finding right of the Commissioner, not only as to that fact, but as to whether there were not other dependents, as indicated in the report of the accident; that the judgment was not rendered pursuant to any findings of the Commissioner, but contrary to his findings and conclusions, and to the matters of fact stated in the certified papers; that the question of the termination of payments as set out in the memorandum of agreement under the provisions of the Workmen's Compensation laws was solely determinable thereunder by the Commissioner and not by the court; that no hearing had been had before the Commissioner or no findings made by him supporting the findings or judgment of the court, and that such supporting findings must be made by the Commissioner. The defendant attached to its petition certified copies of other certificates of the Commissioner, and of correspondence in connection...