Thacker v. Jerome Cooperative Creamery
| Decision Date | 24 October 1940 |
| Docket Number | 6735 |
| Citation | 106 P.2d 863,61 Idaho 726 |
| Parties | RUTH THACKER, as Administratrix of the Estate of HAROLD W. THACKER, Deceased, Respondent, v. JEROME COOPERATIVE CREAMERY, a Corporation, and STATE INSURANCE FUND, Appellants |
| Court | Idaho Supreme Court |
WORKMEN'S COMPENSATION-CLAIM FOR COMPENSATION FILED SUBSEQUENT TO DEATH-AWARD-DISTRICT COURTS-JURISDICTION.
1. The district court in Minidoka county had jurisdiction of claimant's appeal from decision of the Industrial Accident Board, notwithstanding accident on which claim for compensation was based occurred in Jerome county, since district courts are of general jurisdiction. (I. C. A., secs 43-1113, 43-1409.)
2. If the district court of Minidoka county was not the court to which claimant's appeal from decision of the Industrial Accident Board should have been taken, relief should have been sought by petition to have the cause transferred to the proper county rather than by assignment of error. (I. C. A secs. 5-405, 43-1409.)
3. Compensation for loss of leg, by employee who died about an hour after the amputation, was recoverable by his widow, as ad- ministratrix of his estate notwithstanding no award had been made to employee for the amputation, prior to his death. (I. C. A., secs. 43-1113, 43-1202.)
APPEAL from the District Court of the Eleventh Judicial District for Minidoka County. Hon. T. Bailey Lee, Judge.
On an appeal from the Industrial Accident Board to the District Court respondent was awarded compensation and the appellants appeal. Affirmed.
Judgment affirmed. Costs to respondent.
Clarence L. Hillman, for Appellants.
Where, as in this case, an appeal is taken to a district court in a county other than the one in which the injury occurred, the court has no jurisdiction other than to dismiss such appeal. (I. C. A., secs. 43-1408, 43-1409; Wells v. Robinson Const. Co., 52 Idaho 562, 16 P.2d 1059.)
The death of an injured employee before making an award under the Workmen's Compensation Act prevents an award to his personal representative, and personal representative has no authority to bring such an action or proceeding. (I. C. A., secs. 43-902, 43-1001, 43-1003, 43-1101, 43-1102, 43-1103, 43-1113, 43-1121, 43-1202, 43-1206, 43-1407, 43-1408, 43-1409; Harrison et al. v. Tierney Min. Co., 276 Ky. 637, 124 S.W.2d 757; Washabaugh v. Bartlett Collins Glass Co., 177 Okla. 159, 57 P.2d 1162.)
J. W. Taylor, Attorney General, on the Relation of the State Treasurer.
E. B. Smith, for Respondent.
"An appearance for the purpose of objecting to the jurisdiction of the court of the subject matter of the action, whether by motion or formal pleading, is a waiver of all objections to the jurisdiction of the court over the person of defendant, whether the defendant intended waiver or not." (4 C. J., sec. 27, p. 1333; Perrine v. Knights Templar & Masons' Life Indemnity Co., 71 Neb. 267, 98 N.W. 841, 101 N.W. 1017; Elliott v. Lawhead, 43 Ohio St. 171, 1 N.E. 577; Mahr v. Union P. R. Co., 140 F. 921; Wayne v. Alspach, 20 Idaho 144, 116 P. 1033.)
A workman's right to compensation, and the amounts and classifications thereof are fixed by the Workmen's Compensation Law. A workman, by virtue of his employment, is a party to the insurance contract of which that law is a part. Under that contract, from the moment of injury, he becomes entitled to the compensation, payable by the party insuring his employer.
The law fixes a mandatory definite obligation to pay a specific indemnity without limitations or conditions, "in addition to all other compensation". (I. C. A., secs. 43-1113, 43-1605; Haugse v. Sommers Bros. Mfg. Co., 43 Idaho 450, 254 P. 212, 51 A. L. R. 1438; Federal Surety Co. v. Pitts, 119 Tex. 330, 29 S.W.2d 1046; City of Milwaukee v. Roth, 185 Wis. 307, 201 N.W. 251; Greenwood v. Luby, 105 Conn. 398, 135 A. 578, 51 A. L. R. 1443.)
GIVENS, J. Ailshie, C. J., and Holden, J., concur. Budge, J., did not participate. Morgan, J., did not sit at the hearing or participate in the opinion.
Harold W. Thacker, employed by appellant Jerome Cooperative Creamery, with the state insurance fund its insurance carrier, received an accidental injury concededly arising out of and in the course of his employment, September 16, 1931, and was paid compensation as for total temporary disability and for permanent partial disability estimated at 99 per cent of thirty weeks at the rate of $ 10.27 per week, computed on the basis of loss of function of one leg equal to twenty per cent of the loss as compared to amputation thereof at the knee joint under sec. 43-1113, I. C. A. During December, 1934, the resultant condition of his leg necessitated amputation just above the knee at a point approximately between the distal end of the femur and the proximal end thereof, that is between the knee and the thigh, at a point above the knee leaving a stump sufficient to permit the use of an artificial limb.
Mr. Thacker died about an hour after the operation, and his widow, respondent, as administratrix of his estate petitioned the Industrial Accident Board to award her compensation as specified in sec. 43-1113, I. C. A., i. e., $ 10.27 for a period of 99 per cent of 150 weeks commencing December 7, 1934. The specific provisions of the statute being:
"In case of the following injuries the compensation shall be fifty-five per cent of the average weekly wages, but not more than the weekly compensation provided in section 43-1110, in addition to all other compensation, for ninety-nine per cent of the periods stated against such injuries respectively, to wit:
For the loss of: For the following number of weeks: . . . .
One leg at or above the knee where stump remains sufficient to permit the use of an artificial limb. . . . 150"
The board denied the petition, whereupon the respondent appealed to the District Court in and for Minidoka County which granted compensation.
The first assignment of error is that the appeal should have been taken to Jerome county on appellants' contention the accident occurred in Jerome county and that consequently the district court in Minidoka county did not have jurisdiction (sec. 43-1409, I. C. A.) and dismissal is asked.
The objection by the insurance fund is not well taken because the district courts are of general jurisdiction and the action was commenced in the district court by the filing of the appeal therein. If Minidoka county was not the proper county relief should have been by petition to have the cause transferred to the proper county. (Sec. 5-405, I. C. A.; McCarty v. Herrick, 41 Idaho 529, 240 P. 192; Central Illinois...
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