202 P.2d 384 | Idaho | 1948
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *66 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *67 The record in the instant case discloses that on April 7, 1942 appellant, Englebert Wanke, sustained a personal injury accidentally and in the course of him employment, while engaged in clearing a right-of-way, when a log rolled over him, resulting in a comminuted fracture of the shaft of the left femur and while in the employ of the Zeibarth Construction Company, respondent.
Included in the record is the transcript of proceedings, file No. 190555, of March 15, 1944, and from which it appears appellant was awarded $1,215.30 by the Industrial Accident Board. Thereafter, on January 14, 1946, appellant filed an application *68 for modification of award with the Industrial Accident Board on the ground of change in condition with reference to his injury. The defendants answered said application, dated February 25, 1946, and in which they denied that any change in claimant's condition alleged to have taken place since the award is the result of the accident, and allege that any change that may have occurred is the result of what is commonly known as hypertrophic arthritis. A hearing on said issue was held before the Industrial Accident Board at Wallace, Idaho, March, 1, 1946 and at Spokane, Washington, March 4, 1946. The transcript of those proceedings resulted in an award of $106.92 for increase in appellant's permanent disability; and that within 30 days defendants were required to tender appellant an operation for inguinal hernia, or failing in that respect they, and each of them, were to pay him the additional sum of $150 in lieu of the costs of such operation; that by reason of the operation they pay claimant the weekly sum of $12, not exceeding six weeks. Said award is dated and filed April 10, 1946.
November 6, 1947, claimant filed a petition for hearing before the Board from which, after various recitals, it is said: "That claimant now is permanently and totally unable to work and applies for benefits under the law because of change in condition and error of the board in not awarding such benefits during the first of [sic] herein or at any time." A hearing was had thereon November 6, 1947 At said hearing the defendants moved to dismiss the petition for hearing upon the ground that said claim, or any claim of Englebert Wanke against the defendants is barred by the provisions of Section
November 21, 1947, the Industrial Accident Board, after the hearing on said petition, made and entered its findings of fact, ruling of law and order of dismissal, as follows:
"The accident upon which claimant seeks additional recovery occurred April 7, 1942. Claimant on April 5, 1944, recovered an award herein based on said accident; and an additional award on modification on April 10, 1946.
"The formal petition for further recovery in the present proceedings was filed November 6, 1947, and the first information received by the Board of intention to file such a petition was August 28, 1947.
"Ruling of law — Recovery of additional compensation and recoupment of disbursements for medical treatment are barred by Sec.
"Order of Dismissal — Wherefore It is Hereby Ordered that claimant's claim, embodied in his petition of November 6, 1947, be and the same is hereby dismissed."
The appeal is from the order of dismissal as based upon the petition for hearing of November 6, 1947. The notice of appeal, dated and filed December 3, 1947, stated among preliminary recitals: *69
"That Engelbert Wanke, the Claimant and Appellant in this matter, intends to and does hereby appeal to the Supreme Court of the State of Idaho from the orders of the Industrial Accident Board made on the 6th day of November 1947, dismissing claimant's petition for hearing and from the Order of Dismissal made and filed herein on the 21st of November, 1947.
"It is the intention of the Claimant and Appellant to appeal and he hereby does appeal to the Supreme Court of the State of Idaho from said Order of Dismissal and from all of the Findings of Fact, Rulings of Law and Orders upon which said Order of Dismissal is predicated and from the whole thereof."
Section
Appellant's first assignment of error asserts that Section
Heretofore we quote from claimant's petition for additional benefits because of alleged change in condition and likewise from claimant's notice of appeal. The notice of appeal specifically points out the matters and things from which the appeal was taken to this court, but the record is absolutely silent as to the invalidity of Sec.
Syllabus 5. "An appellate court will not consider a question not put in issue by the pleadings." Coulson v. Aberdeen-Springfield Canal Co.,
"The cause must be confined to the issue raised." Foss v. Dahlquist,
Syllabus 11. "Question urged for first time on appeal will not be considered" Garrett Transfer Storage Co. v. Pfost,
Syllabus 7. "Supreme court will not consider question not raised by pleading." Curtis v. Pfost,
"The rule is well settled that party cannot avail himself of a defense for the first time in the appellate court, nor will a question not raised in the trial court be considered on appeal." Grant v. St. James Mining Co.,
"This court has so often held that it will not consider or review a question presented to this court for the first time, unless it be a question of jurisdiction, or that the pleading does not state a cause of action, that it seems almost unnecessary to cite the decisions, but the principle is well recognized in the following authorities: Smith v. Sterling,
"It is fundamental that an appellate court will not consider any question not put in issue by the pleadings." (Citing authorities.) State v. Enking,
"It is the rule in this jurisdiction that a question which was not presented to the trial court may not be raised for the first time on appeal." (Citing authorities.) City of Glendale v. Coquat,
"The validity of the act was question by counsel for appellant, in their brief and oral arguments, on a number of grounds not stated in the complaint nor submitted to the trial judge. Because they are urged for the first time on appeal, they will not be discussed nor decided." (Citing authorities). Johnson v. Diefendorf,
In passing on the constitutionality of an act, courts may not inquire into either the wisdom or motive of the legislature. Nor should a court declare a statute void, unless its invalidity appears beyond a reasonable doubt. Bond v. Phelps, Okl. Sup.,
In the case of Robinson v. Enking,
In the case of Ada County v. Wright,
Nevertheless, if the question involved in appellant's assignments of error related exclusively to the invalidity of section
By Chapter 213, Session Laws 1931, the legislature selected the Governor, Secretary of State and a Justice of the Supreme Court as a Code Commission and they were directed, by the said Act, to compile, annotate and publish codes and statutes of the state of Idaho. In compliance therewith, and as a result thereof, the legislature by Chapter 6, Session Laws, 1933 on January 17, 1933, approved the published compilation and annotation of the codes and statues of the state of Idaho. published and proclaimed in pursuance of the provisions of Chapter 213, aforesaid, and designated and named said publication as the "Idaho Code Annotated."
By Chapter 1, Session Laws 1933, approved January 4, 1933, the Idaho Code Annotated as compiled, annotated, published and proclaimed in pursuance of the direction of said Chapter 213, was approved, adopted and declared to be the authorized compilation of the statutes and code of the State of Idaho.
Any defects or imperfections relative to Section
The Second and remaining assignment of error states that the Board erred in failing and refusing to grant appellant an opportunity to be heard on his petition for the reasons set out under Assignment No. 1, and for additional reasons that assuming that Sec.
The record discloses that on January 14, 1946, an application for modification of award was filed and that on February 25, 1946 an answer, resisting said application, was filed by defendants. A hearing thereon was had before the Board at Wallace, Idaho, March 1, 1946 and at Spokane, Washington, March 4, 1946, and, after due consideration, on April 10, 1946, the Industrial Accident Board made an award and the hearing on the said application was completed and closed, and cannot be considered by this court as a continuing application for modification of award of which this court may take jurisdiction.
The petition for hearing, because of change of condition, is the petition, the hearing of which by the Board resulted in the order of dismissal, dated November 21, 1947, and mentioned in appellant's notice of appeal.
It would seem that Section
In the case of Kelley v. Prouty,
There may be some instances wherein a limitation of four years from the date of the accident within which to make application for modification of award because of a change of condition would be unjust and work a hardship. It must, however, be kept in mind that the application may be made by any part on the ground of a change in conditions, not oftener than once in six months. If an employee has practically *73 recovered from the effects of the injury and the employer or surety has not applied for a reduction of the award then the award continues for the maximum period of time allowed and to the benefit of the employee and the detriment of the employer or surety. Therefore, it has its good qualities as well as defects. Any modification or change in the law should be addressed to and come from the legislature rather than to the courts.
The order of the Industrial Accident Board dismissing appellant's application for additional compensation and recoupment of disbursements for medical treatment is affirmed. Costs to respondent.
GIVENS, C.J., and BUDGE and HYATT, JJ., concur.
HOLDEN, J., did not sit at the hearing or participate in the decision.
Addendum
April 7, 1942, Englebert Wanke sustained a personal injury by accident arising out of and in the course of his employment by respondent Ziebarth Construction Company. On his claim for compensation for the injuries sustained on that date the Industrial Accident Board awarded Wanke $1215.30. Thereafter, towit, January 14, 1946, appellant Wanke filed an application for modification of that award on the ground of a change in his condition. February 25, 1946, Wanke's employer and its surety by answer denied Wanke's condition had changed as a result of the accident. Following the hearing of the last above mentioned application, towit, April 10, 1946, the Board awarded appellant Wanke $106.92 for increase in his permanent disability, and in addition respondent Construction Company and its surety were required to tender appellant Wanke an operation for inguinal hernia, and in the event such tender was not made, then respondents were required to pay appellant Wanke $150 to cover the expense of such an operation, and, further, that by reason of the operation, respondents were also required to pay appellant the sum of $12 weekly not exceeding six weeks.
November 6, 1947, five years and seven months after the accident, appellant filed what is called a "Petition for Hearing" in which he alleges: "That claimant now is permanently and totally unable to work and applies for benefits under the law because of change in condition and error of the board in not awarding such benefits during the first [hearing] herein or at any time."
And in which petition it is also alleged appellant "has a permanent injury, disability for work consisting of complete and total inability to work" and in which appellant further alleges he has "incurred expenses in the sum of $600.00 for medical attendance, hospital and other services." *74
At the hearing of the said petition, appellant not being represented by counsel, the Board requested attorney Walter Oros "to act as amicus curiae on his [appellant's] behalf." Before any evidence was adduced respondents moved to dismiss the petition upon the ground, among others, that "More than four year have now elapsed since the date of the injury and claim for any further compensation is now barred by Section
Mr. Oros was then asked if he had anything to say "with respect to the motion just made by the defendants [respondents]", to which came the reply:
"Mr. Oros: I have nothing to say."
Following the making of that statement, the record shows this:
"Mr. Oros: I would like to have the Board rule on the motion so I can make an offer of proof.
"Mr. Oppenheim: Motion granted."
Mr. Oros then made an offer to prove appellant "is now permanently and totally disabled and unable to work and that the Board on its last hearing as of April 10, 1946, and its Findings of Fact and Conclusions of Law was in error in that an award was not entered in sufficient benefit to which he was entitled under the law of this State. That he [Wanke] had a change of condition at that time and that he has a further change in condition at the present time, and he now is completely and totally disabled to work by reason of the said injury. He has paid out some $600 for medical and hospital care; that assuming for the sake of argument that disability benefits under the law are barred, still it does not bar him [Wanke] from his claim for $600 which he has incurred arising out of and by reason of this accident, it being his position that medical and hospital expenses are not in the category of compensation benefits that would be barred under the four year limitation."
In support of the offer of proof appellant was permitted to testify to the medical expenses incurred and paid out following the last above mentioned award of the Board, at the close of which respondents renewed their motion to strike "on the ground that any claim that the claimant may have is now barred by Section
"Mr. Oppenheim: Your last motion is granted."
Thereafter, towit, November 21, 1947, the Board made and filed findings of fact and rulings of law and entered thereon the following: "Wherefore, it is hereby ordered that claimant's claim, embodied in his petition of November 6, 1947, be and the same is hereby dismissed."
On appeal from that order claimant Wanke, among other things, challenged the constitutionality of sec. 43-1047, I.C.A., on numerous grounds as appears from the foregoing opinion filed June 24, 1948. Thereafter, to wit, July 12, 1948, claimant Wanke filed a petition for rehearing, which *75
was granted and a rehearing ordered and had at our November 1948 term at Coeur d'Alene. In his petition for rehearing appellant urged the court erred in holding it would not review a question not raised by the pleadings or submitted to the tribunal below, appellant insisting the constitutionality of a statute can be raised for the first time on appeal. And, also, that the court erred in holding "Any defects or imperfections relative to Section
Counsel for the respective parties, as well as Mr. Oros, were requested to brief certain questions, among others: Whether the Industrial Accident Board was vested with power or jurisdiction to decide the constitutionality of any provision of the Workmen's Compensation Law, and if so, how and in what manner should the question be raised before the Board; whether it was necessary to raise the question before the Board in order to preserve the right to have the question determined by this court; whether claimant by his "Petition for Hearing" and offer of proof was seeking compensation for a continuance of the same disability or for an increase in compensation based upon a change of conditions; whether, regardless of the claim and offer, should the Board, nevertheless have proceeded to hear and investigate the matter in full; and whether section
At the outset, it may be stated appellant agrees with respondents that: "* * * the question of a statute's constitutionality is a judicial problem that only the courts have power to decide. It is not a proper question for determination by an administrative board even though it may in its normal proceedings exercise quasi judicial powers."
But appellant insists, and we think correctly, that the constitutionality of any part or provision of the Workmen's Compensation Law may be raised for the first time on appeal, where no prejudice will be suffered by the adverse party, Cole v. Fruitland Canning Ass'n,
Furthermore, while it is too late to question the validity of a statute, after codification, on the ground of some alleged defect in the title, Anderson v. Great Northern R. Co.,
That brings us to the consideration of appellant's attack on the constitutionality of sec.
Section
Can it be seriously contended that that section denies either equal protection of the laws or due process of law, or that it is arbitrary and unfair, or that it makes any classification whatsoever, or that it deprives any person of property or property rights? Just a casual reading of the section discloses that instead of denying either equal protection of the laws or due process of law, section
But appellant insists he alleged in his "Petition for Hearing" "both a change of condition and error on the part of the Board in not awarding him compensation to which he was entitled at the first hearing or at any time. If claimant's physical condition has become progressively worse he should be entitled to recover additional compensation for the increase in the extent of his permanent injuries under Sec.
And appellant also contends he was totally disabled for work March 15, 1944, and that the Board so found in its amended findings of fact dated April 22, 1944, reading as follows: "That as the result of the injury the claimant was totally temporarily disabled for work from and after the said 7th day of April, 1942, until the 15th day of March, 1944, at which time he was surgically healed of his injury and now has as a result of his injury by accident a permanent partial disability equal to and comparable with 30% of the loss of the left leg at the hip joint, so as to preclude the use of an artificial limb."
Appellant is mistaken in his construction of that finding. The Board did not find appellant was totally disabled for work March 15, 1944. What the Board found was, as the finding itself clearly states: That appellant was totally temporarily disabled for work from April 7, 1942, until March 15, 1944, further finding that on March 15, 1944, appellant was surgically healed of his injury but as a result of the accident April 7, 1942, he had a permanent partial disability, not total disability. And if appellant's disability for work March 15, 1944, was total, as he now contends, and not partial, he should have appealed from the award.
Furthermore, if appellant's physical condition was "continuing" and becoming "progressively worse" as he also contends, and he was, for that reason "entitled to recover additional compensation," the Workmen's Compensation Law gave him a complete remedy by appeal. And if it be true, that "Actually, appellant has been unable to work since the accident and that fact stands out irrespective of all the arguments that may be advanced in opposition to his right to recover compensation for his "disability for work" (emphasis added), appellant had ample time within which to make an *78 application and showing, and if the Board denied an award, could also have appealed from that.
Furthermore, the record discloses appellant in his Application for Modification of Award, filed January 14, 1946, not only claimed compensation on the ground of a change in his condition, but also claimed compensation for "permanent total disability". Instead of awarding compensation for permanent total disability, the Board awarded permanent partial disability as above pointed out. If the Board erred in making that award, by thereby denying an award for "permanent total disability", appellant should have appealed. It was too late, November 6, 1947, to either appeal or make an application or for the Board to examine into or determine any of those matters.
Appellant also contends sec.
See also Mix v. Board of Com'rs of Nez Perce County,
We come now to the question: May claimant Wanke recover money expended for hospital and medical care (after the last award of the Board April 10, 1946) on an application therefor filed with the Board November 6, 1947, more than five years after the date he was accidentally injured?
On that question our attention is directed to secs.
[Sec.
[Sec.
It should be pointed out here the record does not show claimant's injuries required continuous medical treatment and care from the date of the accident, as apparently true in Flock v. J.C. Palumbo Fruit Co.,
In construing section
It follows the order of the Board must be affirmed, and it is so ordered, with costs to respondents.
GIVENS and HYATT, JJ., and TAYLOR and SUTPHEN, Dist. JJ., concur.