Wieber v. England

• Decision Date: 13 December 1927
• Docket Number: 5701
• Citation: 216 N.W. 850,52 S.D. 72
• Parties: C. H. WIEBER, Plaintiff and respondent, v. R. P. ENGLAND et al, and Georgia Casualty Company, Insurer Defendants and appellants.
• Court: South Dakota Supreme Court

52 S.D. 72

216 N.W. 850

C. H. WIEBER, Plaintiff and respondent, v. R. P. ENGLAND et al, and Georgia Casualty Company, Insurer

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Lyman County, SD

Hon. John G. Bartine, Judge

File No. 5701—Reversed

Johnson & Simons, Sioux Falls, SD

Attorneys for Appellants.

M. Q. Sharpe, Kennebec, SD

Attorney for Respondent.

Opinion filed December 13, 1927

BURCH, J.

On August 8, 1923, claimant C. H. Wieber filed a claim for compensation under the Workmen’s Compensation Law against R. P. England and the Georgia Casualty Company. The claim was verified by claimant’s attorney and alleged that the claimant suffered an in jury to the left eye, on the 13th of June, 1923, while in the employ of England. England carried workmen’s compensation insurance in the Georgia Casualty Company. England and the insurance company resisted the claim and a board of arbitration was appointed to try the issues. The board decided in favor of claimant and on review before the industrial commissioner the order of the board was affirmed. Defendants appealed to the circuit court of Lyman county. The circuit court affirmed the decision and defendants appealed to this court from the judgment of the circuit court, and an order of that court denying a new trial.

By proper assignments of error appellants present several questions: They contend, first, that the board of arbitration did not make and file findings of fact and conclusions of law, and, for that reason, its award is a nullity, and the subsequent order of the industrial commissioner and the judgment of the circuit court is also a nullity; second, that the industrial commissioner erred in not permitting appellant to introduce additional evidence on review of the award; third, that the defendants did not have a fair trial because the deputy industrial commissioner, who was one of the board of arbitrators, followed an ironclad rule to decide in favor of the employee and against the employer and insurance companies, whenever in doubt on a claim for compensation; fourth, that the trial court erred in denying appellant a jury trial; fifth, that in any event the judgment of the circuit court should be modified because the award provided for payment of the amount allowed in weekly sums of $15 a week, and the circuit court rendered judgment for the entire amount ($1,815) to be paid in a lump sum, with interest from the date of the award; sixth, that the evidence is insufficient to sustain the award, the order of the industrial commissioner, and judgment of the trial court.

In order that a discussion of these questions may be more readily followed a short statement of the proceedings, applicable to this case under the Workmen’s Compensation Law is here given.

Section 9468, R. C. 1919, provides:

“If the employer and injured employee, or his representatives or dependents, fail to reach an agreement in regard to compensation under this article, either party may notify the industrial commissioner, who shall thereupon call for the formation of a board of arbitration, which shall consist of three persons, one of whom shall be the industrial commissioner, who shall act as chairman, the other two shall be named, respectively, by the two parties. If a vacancy occurs it shall be filled by the party whose representative is unable to act.”

Section 9471, as amended by chapter 417, Laws 1921, provides:

“The board of arbitration shall make such inquiries and investigations as it shall deem necessary. … The decisions of the board, together with the statement of evidence submitted before it; its rulings, its findings of fact, its conclusions of law and other matters pertinent to questions arising before it, shall be filed in the office of the industrial commissioner. Unless a claim for review is filed by either party … the decision shall be enforceable under the provisions of this article.” Section 9474:

“If a claim for review is filed, the industrial commissioner shall hear the parties and may hear evidence in regard to any or all matters pertinent thereto and may revise the decision of the board of arbitration, in whole or in part, or may refer the matter back to the board for further. findings of fact, and shall file its decision with the :records of the proceedings and notify the parties thereof. No party shall as a matter of right be entitled to a second hearing upon any question of fact.”

Section 9489 allows an appeal to the circuit court as provided by section 9180. That section (9180) provides that such appeals shall be “taken and prosecuted under rules and regulations, consistent with the laws of this state, adopted and prescribed by the Supreme Court.”

This court has prescribed rules (Supreme Court Rules, pt. 3, Nos. 1-16, inc.). Rule 6 provides for certifying the record from the industrial commissioner to the circuit court. Rule 8, that the records so certified shall constitute the record upon which the appeal shall be determined, and no additional evidence shall be received in circuit court upon the trial of the appeal, whether the trial be had before the court or before a jury. Rule 9:

“Such appeals shall be heard and determined by the court without a jury, except in cases of appeal from an order or decision of the industrial commissioner where the right of trial by jury is preserved by the Constitution of this state. In such excepted cases the trial shall be by jury unless a jury be waived.”

In short, proceedings under the Workmen’s Compensation Law require a trial before a board of arbitration, where a record of the evidence, the rulings, findings of fact, conclusions of law, and other pertinent matters before the board must be preserved. All proceedings thereafter, either before the industrial commissioner on review or the courts on appeal, must be upon the record so taken and preserved. With the exception of the discretionary power of the industrial commissioner to allow additional evidence on review before him, the trial of issues of fact are confined exclusively to the board of arbitration. The board of arbitration is the trial forum for ascertaining the facts. If any additional evidence is taken before the commissioner on review, it supplements the record already taken. The review is in no sense a trial de novo. In a number of cases (Day et al v. Sioux Falls Fruit Co. et al, 177 N.W. 816; Vodopich v. Trojan Mining Co., 180 N.W. 965; Dependents of Shaw v. Harms Piano Co., 184 N.W. 204; Wakefield v. Warren-Lamb Lumber Co., 194 N.W. 835) this court held that the findings of the industrial commissioner will not be disturbed on appeal if there is any reasonable and substantial evidence tending to establish the commissioner’s findings. That puts the findings of the board of arbitration and industrial commissioner upon the same plane as the verdict of a jury.

In Day v. Sioux Falls Fruit Co., supra, this court held that the Workmen’s Compensation Law was intended to avoid delays and much of the technical formal procedure incident to trials before courts, and to establish more simple, speedy, less formal, and summary methods of procedure, unhampered by formal legal rules, for adjustment of such questions between employer and employee. But this court has not so far definitely stated the functions of the board of arbitration, industrial commissioner, and the courts. Neither have members of the bar having cases involving compensation under the Workmen’s Compensation Law distinguished the functions of each, and, for that reason, there is a constant attempt to apply rules of procedure wholly inapplicable. To avoid further confusion, we analyze the law before entering upon a discussion of the errors assigned. When this is done, the proper disposition of many of the assignments will become obvious without extended comment.

The proceedings before the board of arbitration and industrial commissioner are not court proceedings, but are proceedings in arbitration. Arbitration was known to the common law and was sanctioned as an inexpensive, informal, and prompt method of settling disputes. But the award was not a judgment and could he enforced only by a suit at law; the award being substituted as a basis of the suit instead of the unsettled rights of the parties. Statutes governing arbitration...