The Midwest Ref. Co. v. George

• Decision Date: 25 January 1932
• Docket Number: 1699
• Citation: 44 Wyo. 25,7 P.2d 213
• Parties: THE MIDWEST REF. CO. v. GEORGE
• Court: Wyoming Supreme Court

7 P.2d 213

44 Wyo. 25

THE MIDWEST REF. CO. v. GEORGE

No. 1699

Supreme Court of Wyoming

January 25, 1932

ERROR to the District Court, Natrona County; SAM M. THOMPSON Judge.

Action by Edwin George, injured workman, against The Midwest Refining Company, a corporation, for recovery of additional award under Workmen's Compensation Law. There was judgment for plaintiff and defendant brings error.

See also 41 Wyo. 55, 281 P. 1005.

Affirmed.

For plaintiff in error there were briefs by Hagens and Wehrli, of Casper, Wyoming, and oral argument by Mr. G. R. Hagens.

This case was before the court in Midwest Refining Company v George, 41 Wyo. 55, wherein it was reversed on the ground that the evidence did not show that the employee's condition had grown worse after entry of the original judgment. The original judgment was entered upon a stipulation, that claimant had suffered partial, permanent disability to the extent of 62 1/2% of total and an award was made by order of February 21, 1927, allowing the said employee $ 2,650.00. The stipulation in substance provided that the award to be entered should be in full settlement unless employee's condition without interference of other causes should grow steadily worse. This clause was omitted from the judgment. On December 26, 1928, claimant petitioned for re-opening of the case, which was denied by order of January 10th, 1929. This order was never vacated or set aside except that under date of February 4th, 1929, an order was made opening the order of January 10th, 1929. As a result of the two hearings, claimant was awarded additional compensation of $ 1,500.00 on March 21, 1929, which order was reversed by this court on the appeal referred to, and the case was remanded for a new trial. Upon the second trial, the substance of claimant's testimony failed to show that he was in worse condition than he had been from the beginning. The court was not concluded by mere assertions of the witness. Fieldhouse v. Leisburg, 15 Wyo. 207; Weidenhoft v. Primm, 16 Wyo. 340; Wolbol v Steinhoff, 25 Wyo. 251. An award is a judicial determination of the rights of the employer, the employee and the Industrial Accident Fund, as to all matters involved. Ch. 124, Sec. 9, Laws 1925. The authorities are fully reviewed in Midwest Refining Co. v. George, supra. Upon the second hearing, claimant was allowed $ 800.00 additional compensation. The employer waived no rights by submitting to the second hearing. The original judgment did not provide for a retention of jurisdiction. Power to correct clerical error does not authorize the changing of judgments. 1 Freeman on Judgments, 5th Ed., Sec. 141. The court below erred in not sustaining the employer's objection and dismissing the case, for the reason that the evidence showed that claimant was no worse at time of second hearing than he had always claimed to be as shown by his own testimony.

For the defendant in error there were briefs and the case was argued orally by Robert R. Rose, of Casper, Wyoming.

The original judgment awarding compensation for 62 1/2% of total disability omitted an important condition of the stipulation that it should be in full discharge of the employee's claim unless his condition without the interference of any other cause, should grow steadily worse. This court in 41 Wyo. 55, reversed the modified judgment for $ 1,500.00 on the ground that there was no evidence showing that the employee had grown worse, and remanded the case for a new trial. At the conclusion of the new trial, the trial court awarded claimant $ 800.00 additional upon the basis of disability of 82 1/2% of total. We are unable to understand why the case should be remanded for a new trial unless there were additional facts to be re-tried. Counsel for plaintiff in error cites authorities for his contention that the court is not concluded by mere assertions of the witness that he has grown worse. We are unable to see the application of such a rule in this cause. A witness may testify as to his own physical condition. 22 C. J. 618, Sec. 710 and authorities cited. There was substantial evidence showing that the condition of defendant in error was worse than it was upon the date of the original judgment, and the modifying judgment should be affirmed. No objection was made at the trial by defendant on the question of jurisdiction. The stipulation made between the parties for additional compensation, in case claimant should grow worse, retained the court's jurisdiction, and that was especially true since the parties came into court voluntarily. 4 C. J. 1349, 1350, 15 C. J. 807, 844; Black, 2nd Ed., Sec. 217; Hobart v. Frost, 5 Duer. (N. Y.) 672; Byrd v. McDaniel, 26 Ala. 582; Brownmark v. Livingston, 100 Ill.App. 474; Taylor v. Co., 68 Mo. 398; Harrison v. Osborne, (Okla.) 114 P. 331; National Home v. Overholser, 60 N.E. 628. Where the court has jurisdiction of the subject matter, jurisdiction by consent was not held valid in any of the cases except one, that of Evans v. R. R. Co., (Mont.) 149 P. 715. It is respectfully submitted that the judgment should be affirmed.

Hagens and Wehrli, in reply.

Counsel states that there is but one question before the court, viz: whether the trial court exhausted its jurisdiction to further consider the case, either under the terms of the stipulation or the consent of the parties, and then dismisses the first alternative by saying merely that it should be given weight. There is a division of authority on the question, as bearing upon the circumstances of each case. Few cases can be found authorizing re-opening after the term, where full hearing upon the merits was had. Cases cited by counsel will be found to apply to dismissal for want of prosecution, defaults, want of jurisdiction, and judgments following rulings on demurrers. The general rule is that jurisdiction cannot be restored by consent. 15 C. J. 825; State v. Nixon, (Mo.) 134 S.W. 538; U. S. v. Mayor, 59 L.Ed. 129, 235 U.S. 55; Bronson v. Schueten, 104 U.S. 410, 26 L.Ed. 797, and the rule has particular application where the consent is merely by attorneys of the parties. Brown v. Arnold, 127 F. 387; Finley v. U. S. Rwy. Co., (Mo.) 141 S.W. 866, 34 C. J. 255. After expiration of the term, the statutory method must be followed Boulter v. Cook, 32 Wyo. 461; Anderson v. Thompson, (Conn.) 7 Lea 259; Western Land Etc. Co. v. Hunfield, (Ore.) 247 P. 143; Sutton v. Anderson, (Mo.) 31 S.W. (2nd) 1026; 15 R. C. L., Sec. 143, p. 691; Sescalso v. San Francisco, 60 Cal. 296; Moody v. Freeman, (Okla.) 104 P. 30; Fulton v. Fisher, (Mo.) 143 S.W. 438; 15 C. J. 826. Where a compensation case has gone to judgment, and the current term has elapsed, it is no longer a compensation case. The trial court has no jurisdiction after the term to vacate or modify the judgment even with consent of the parties. Consent cannot be inferred from participation in a subsequent hearing. The judgment should be reversed.

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

OPINION

BLUME, Justice.

This is the second appeal in the case. Most of the facts of importance herein are detailed in the opinion in the case on the first appeal, found in 41 Wyo. 55, 281 P. 1005. Only those necessary to make this opinion intelligible will be repeated, or enlarged upon, here. The Midwest Refining Company, appellant, will be designated herein as the employer, and George, the respondent, as employee.

The employee, because of injuries received on December 12, 1924, filed a claim for compensation. The parties addressed a petition to the court containing a stipulation as to the judgment that should be rendered, which in part is as follows:

"Employee, therefore, for the purpose of settlement in this matter, claims an award for 62 1/2 percent of permanent total disability, in the sum of $ 2500 together with an award for temporary total disability in the sum of $ 150.00, as above set forth. Employee hereby agrees that he is satisfied with the above claim and that such awards shall be received by him in full settlement of all claims and demands against the Midwest Refining Company from the Industrial Accident Fund of the State of Wyoming, growing out of the said accident of December 12, 1924, and the alleged accident of October 3, 1926, unless his condition, without the interference of any other causes, grows steadily worse, and in no event shall employee make any additional claim herein if by reason of returning to work at any gainful occupation, he shall receive any additional injury whatsoever by reason of accident, strain, activity or labor which may or shall tend to aggravate or aggravate and increase the disability hereinabove described."

The prayer was as follows:

"Wherefore, employer and employee pray an order of court be entered in favor of said Edwin George, employee, for the full sum of $ 2650 as hereinabove set forth and that the same be a full, final and complete adjudication of the rights of the parties hereto and the industrial accident fund of the State of Wyoming as to all matters and things herein involved."

On February 21, 1927, the court entered a judgment finding the disability of the employee to be 62 1/2% making an allowance of $ 2650, and stating: "This order to be in full, final and complete adjudication of the rights of the parties hereto," without mentioning the condition of the stipulation relating to the employee's condition growing worse thereafter.

On December 26, 1928, the employee filed a petition to reopen the case, claiming that his condition had grown worse since the entry of the foregoing judgment, and asking additional compensation. The court directed that notice of the filing of the petition be given to the employer. Whether that was done or not does not appear. But the case was...