The Midwest Refining Co. v. George

• Decision Date: 12 November 1929
• Docket Number: 1586
• Citation: 281 P. 1005,41 Wyo. 55
• Parties: THE MIDWEST REFINING CO. v. EDWIN GEORGE [*]
• Court: Wyoming Supreme Court

281 P. 1005

41 Wyo. 55

THE MIDWEST REFINING CO. v. EDWIN GEORGE ^[*]

No. 1586

Supreme Court of Wyoming

November 12, 1929

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

Proceedings to reopen former judgment under Workmen's Compensation Law by Edwin George against the Midwest Refining Company, a corporation, and for allowance of additional award. There was judgment for claimant, and defendant brings error.

Reversed and Remanded.

For the plaintiff in error there was a brief by John B. Barnes, Jr. Edward S. Arentz, and Edwin Barrett of Casper, Wyoming, and oral argument by Mr. Barnes and Mr. Arentz.

There was no jurisdiction to reopen the cause eighteen months after an award made for a lump sum. Standard Oil Co. of Indiana v. Buchannan, 39 Wyo. 372. The only authority to reopen the final hearing rests in the Supreme Court. 4328 C. S 1920, Ch. 124, Sec. 2, Laws 1925. Reintsma v. Standard Oil Co., 37 Wyo. 471. Right of appeal was lost by award of Feb. 21, 1927. The District Court cannot change or modify its final order after the term. 4334 C. S. The amendment made in 1927 merely authorizes retention of jurisdiction until award is paid; the statute is plain and there is no room for construction. Harvester Co. v. Lumber Co., 25 Wyo. 367. An award under the Workmen's Compensation Law has the force of a judgment. Laws 1925, Ch. 124, Sec. 9. The code of civil procedure applies. The trials and orders of Jan. 7th, and March 14th, 1929, are res adjudicata. Hennessy v. R. R. Co., 24 Wyo. 305, 316. The evidence did not sustain a finding and award for total permanent disability. Claimant performed his usual and customary work at hard labor for one year and six month after the first award. The employer was not informed of a second alleged injury until Nov. 16, 1926. The controversy as to his condition, resulted in the stipulation referred to in the evidence under which he was awarded and received $ 2,650.00. He resumed work for a short period thereafter, and then went to Oregon and leased a dairy farm. He finally returned to Casper, and another hearing was had on Jan. 7, 1929, resulting in adverse finding upon his claim. He filed a motion for a new trial and on Feb. 2, 1929, the court ordered the case reopened; the motion for a new trial was never ruled upon; additional testimony was received on Mar. 21, 1929. The testimony of another physician available but not called at the Jan. 7th hearing was received. This was error. Durham v. State, 29 Wyo. 85; Demple v. Carroll, 21 Wyo. 447; R. R. Co. v. Ott, 33 Wyo. 200; Link v. Co., 3 Wyo. 679. Total permanent disability does not exist where one is able to follow a gainful occupation. 4334 C. S. Laws 1921, Ch. 60, Sec. 10, Clause B. Claimant had followed the occupation of a dairyman and also as a janitor; both gainful occupations. The court should take judicial notice of that. 91 U.S. 43. The court erred in granting the motion for a new trial. Koshland v. Webber, 23 Wyo. 241; Mining Co. v. Stanko, 22 Wyo. 110. Where expert witnesses were available but not called at former trial, new trial should not be granted to secure their testimony as newly discovered evidence. Bertha Zinc Co. v. Admr., 70 L. R. A. 999; Cupples v. Zupan, (Ida.) 207 P. 328; Jensen v. Rwy. Co., (Wash.) 98 P. 1124; Matoushek v. Dutcher & Sons, (Nebr.) 93 N.W. 1049. There was no ground for a new trial on account of accident or surprise. Rand v. Kipp, (Mont.) 69 P. 714; Cherry v. Milam, (Okla.) 168 P. 241; Mining Co. v. Coulter, (Utah) 5 P. 557; Jensen v. Rwy. Co., supra. There must be a showing that it was not within power of applicant to secure additional evidence by reasonable diligence. State v. Gay, (Wash.) 144 P. 711; Reeder v. Bank, (Wash.) 68 P. 461. Diligence would have brought Dr. Camp's evidence into the record of the first hearing. Board of Regents v. Linscott, (Kan.) 1 P. 81. Motions for new trial on ground of surprise are received with suspicion and require satisfactory showing. Gaines v. White, 47 N.W. 524; Hill v. McKay, (Mont.) 93 P. 345; Harden v. Card, 15 Wyo. 217. New trials should not be granted because evidence at trial was different from what applicant suspected. Beal v. Codding, (Kan.) 4 P. 180; Bank v. Downs, (Wash.) 129 P. 894; Co. v. Wilson, 101 P. 4. The order reopening the cause was an abuse of discretion. Allen v. Lewis, 26 Wyo. 85; Leveridge v. Hennessy, 135 P. 906; Brower v. Co., (Kan.) 105 P. 497. Application for reopening of cause comes too late after judgment and the acceptance and payment thereof. Bridger v. Bank, (Ga.) 56 S.E. 97. Evidence of a cumulative character on the same point in controversy, is not ground for a new trial, where diligence was not exercised by the moving party and he had opportunity to secure it at or prior to the former trial. Durham v. State, 29 Wyo. 85; Demple v. Carroll, 21 Wyo. 447; R. R. Co. v. Ott, 33 Wyo. 200; Link v. Rwy. Co., 3 Wyo. 679. It is clearly shown by the record, that the cause was fully and finally determined by the former judgment, and that no further disability occurred subject to the judgment of Feb. 21, 1927. The trial court was without jurisdiction to modify, change or make a further award under the Workmen's Compensation Law.

For the defendant in error there was a brief by R. R. Rose, and oral argument by Mr. Rose.

The so-called "employees' claim for compensation and employers' assent thereto" also referred to as a stipulation shows a tacit admission that workman had suffered total permanent disability and that in the event that his condition should grow worse, he might make an application for an additional award. The court retained jurisdiction to make such additional award; the allowance of 62 1/2% of total permanent disability, was to be paid forthwith, and be final, unless the workman's condition should grow worse; the judgment went no further and was based upon the stipulation. The stipulation, however, was in conflict with 4324 C. S.; the award was not a final disposition of the claim; the petition for reopening of the judgment was supported by affidavit; it might properly be considered a petition for new trial upon newly discovered evidence. 5874 C. S. The newly discovered evidence being the change in the physical condition of the workman. Defendant appeared voluntarily and participated at the hearing upon the petition for reopening, and cross-examined plaintiff's witnesses; defendant's counsel did not object to the jurisdiction of the court, but objected to further allowance on the ground that evidence given at that hearing did not show that workman's condition had grown worse, which was at least a tacit consent to reopening the judgment for purposes of inquiry upon that question. The finding and judgment was adverse to plaintiff and he filed a motion for a new trial; upon hearing of the motion, a rehearing was granted, at which an additional award was made on March 21, 1929, following which, defendant moved for a new trial, one of the grounds of which was, that the order made after reopening the case was a judicial determination of the rights of the employer, the employee and the industrial accidents fund, thus conceding jurisdiction of the court to act on Feb. 21, 1929. This amounts to a waiver and consent to the opening of the judgment. 15 C. J. 807, and cases cited, or if defendant contends that jurisdiction was exhausted by the court order of February 21, 1927, allowing 62 1/2% of total disability, then jurisdiction was restored by consent of defendant by its action at various stages of the proceeding up to its final appeal for review of the issues made on its motion for new trial. 4 C. J. 1349-1350; Stone Co. v. Springs Co., 155 S.W. 1083; 4 C. J. 1333-1335. Jurisdiction by consent may be conferred in either of three situations, namely:

(1) Where the court has jurisdiction of the subject matter, but not of the person;

(2) Where the court has jurisdiction of the particular class of cases, but not of the subject matter of the particular case, or

(3) Where the court originally had jurisdiction of the subject matter of the particular case, but its jurisdiction has been exhausted. Plaintiff is entitled to compensation in accordance with the schedule prescribed. 4334 C. S., which defines permanent, total disability. It was clearly intended that the court should retain jurisdiction to provide for increased disability up to the maximum allowed therefor. Chap. 124, Sec. 9 of the Laws of 1925, did not extinguish this right. There is also some question as to the validity of the act of 1925, which is broader than the title thereof. Sec. 4327 C. S. provides that the taking of evidence shall be summary, giving full opportunity to develop the facts, indicating that technical rules of evidence or procedure should not stand in the way of a full consideration of facts relating to the workmen's disability; plaintiff's petition to reopen complies with requirements of Sec. 5874 C. S., permitting new trials for newly discovered evidence and a proceeding of this character is so recognized by the courts. Roberts v. Packing Co., (Kan.) 160 P. 227. The court had jurisdiction to make the order of March 21, 1928, independent of consent, and if not, it is clear that jurisdiction was conferred by consent; there was conclusive evidence that plaintiff is totally and permanently disabled from performing any gainful occupation, and that it resulted from the injuries sustained while in defendant's employ; also that such total disability developed within the period intervening between Feb. 21, 1927, and the final award; total disability is defined by the statute itself. The following cases support the proposition: In re Sullivan, (Mass.) 105 N.E. 463; Moore v. Pete Bros., 162 P. 295.

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

OPINION

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