Wanke v. Ziebarth Const. Co. , 69 Idaho 64 ( 1948 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] 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 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 43-1407, I.C.A., and objected to any further proceedings in said matter.

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. 43-1407, I.C.A.

"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:

"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 43-1407, I.C.A. is an amendment of I.C.S. 6269, and is as follows: " On application made by any party within four years of the date of the accident causing the injury, on the ground of a change in conditions, the board may at any time, but not oftener than once in six months, review any agreement or award, and on such review may make an award ending, diminishing or increasing the compensation previously agreed upon or awarded, subject to the maximum and minimum provided in this act, and shall state its conclusions [findings] of fact and rulings of law, and immediately send to the parties a copy of the award, but this section shall not apply to a commutation of payments under Section 43-1121. ('31, c. 222, § 6.)"

Appellant's first assignment of error asserts that Section43-1407, I.C. A. insofar as it provides that an injured employee may not recover compensation and recoupment for medical expenses after four years from the date of the accident is repugnant to the "due process" clause found in art. 1, Sec.13 of the Constitution of Idaho and also theFourteenth Amendment of the Federal Constitution and also the "equal protection" clause contained in the Fourteenth Amendment, aforesaid. That section 6 of chapter 222 of the 1931 Session Laws, which amended section 6269, Idaho Compiled Statutes and now appears as Section 43-1407, I.C.A., is repugnant to art. 3, Sec. 16 of the Idaho Constitution in that every act shall embrace but one subject and matters connected therewith and which shall be expressed in the title. And, furthermore, if sec. 43-1407, I.C.A., is a statute of limitations if violates art. 3, Sec. 19 of the Constitution of Idaho, in that it is a special law for the limitations of civil actions.

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. 43-1407, I.C.A., as noticed in complainant and appellant's specifications of error. The maxim, "The expression of one thing is the exclusion of another" is appropriate. Said question as to such invalidity is raised for the first time in this court. This court has repeatedly held that it will not consider or review a question not raised by the pleading or submitted to the tribunal below as is evidenced by the following authorities:

Syllabus 5. "An appellate court will not consider a question not put in issue by the pleadings." Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 227 P. 29.

"The cause must be confined to the issue raised." Foss v. Dahlquist, 48 Idaho 30, 279 P. 407, 408.

Syllabus 11. "Question urged for first time on appeal will not be considered" Garrett Transfer Storage Co. v. Pfost,54 Idaho 576, 33 P.2d 743, 744.

Syllabus 7. "Supreme court will not consider question not raised by pleading." Curtis v. Pfost, 53 Idaho 1, 21 P.2d 73.

"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., 33 Idaho 221, 222,191 P. 359.

"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,1 Idaho 128; Aram v. Edwards, 9 Idaho 333, 74 P. 961; Watson v. Molden, 10 Idaho 570, 79 P. 503; Miller v. Donovan, 11 Idaho 545,83 P. 608; Medbury v. Maloney, 12 Idaho 634, 88 P. 81; Steve v. Bonners Ferry Lumber Co., 13 Idaho [384], 392, 92 P. 363." Marysville Mercantile Co., Ltd. v Home Fire Ins. Co.,21 Idaho 377, 395, 121 P. 1026, 1033.

"It is fundamental that an appellate court will not consider any question not put in issue by the pleadings." (Citing authorities.) State v. Enking, 59 Idaho 321, 344, 82 P.2d, 649,659.

"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, 46 Ariz. 478, 52 P.2d 1178, 1181, 102 A.L.R. 837.

"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, 56 Idaho 620, 633, 57 P.2d 1068, 1073.

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., 191 P.2d 938.

In the case of Robinson v. Enking, 58 Idaho 24, 69 P.2d 603,604, it is said: "* * * we are admonished by a well-established rule running throughout a long line of decisions from this court, to the effect that every reasonable presumption must be indulged in favor of the validity of statute." (Citing numerous authorities).

In the case of Ada County v. Wright, 60 Idaho 394, 411,92 P.2d 134, 142, is the following: "The holding of the Florida case [Carlton v. Mathews, 103 Fla. 301, 137 So. 815] seems to us more in harmony with the generally prevailing rule for measuring and adjudging the constitutionality of legislative acts. That rule is that where there is room for serious doubt as to the unconstitutionality of a legislative act, the doubt should be resolved in favor the validity of the act." (Number of Idaho authorities).

Nevertheless, if the question involved in appellant's assignments of error related exclusively to the invalidity of section 43-1407, I.C.A., consideration thereof would not be warranted nor a reversal of the hearing justifiable because of the provisions of the following Acts:

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 43-1407, I.C.A., as originally enacted in 1917, if any there were, would be cured by the re-enactment there of as disclosed by the foregoing acts, and in the absence of other authority would be sufficient to negative the contentions of appellant that said section is invalid.

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. 43-1407, I.C.A., is constitutional, that appellant has complied with its provisions by filing an application for modification of award on January 14, 1946, almost three months prior to the expiration of the four year period. If the record discloses that the said "application for modification of award" on January 14, 1946, was considered by the Board and finding of fact, rulings of law and an award was made and entered in connection therewith, then there is nothing before this court authorizing it to take into consideration that the four year limitation, from the date of the accident, causing the injury, is before us.

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 43-1407, which provides a limitation of four years from the date of accidents within which an application for modification on account of change in condition must be filed, is so plain and certain that no need for authority supporting such a proposition is required.

In the case of Kelley v. Prouty, 54 Idaho 225, 30, P.2d 769, 771, it is said: "In 1931 said section [C.S. 6269] was amended and is now found as section 43-1407, I.C.A., limiting the time for the filing of an application to show a change of condition, by any party, to within four years of the date of the accident causing the injury. The question arises, was the provision limiting the time to file an application by reason of change in condition, within four years, retroactive? There is no express provision in the 1931 amendment, now section 43-1407, I.C.A., making the law retroactive. This court has repeatedly held that no statute should be construed to be retroactive unless such intention on the part of the Legislature is clearly expressed. [Citing a number of authority]." Eldridge v. Idaho State Penitentiary as employer and Idaho Insurance Fund as surety,54 Idaho 213, 30, P.2d 781, Zapantis. v. Central Idaho Min. Mill. Co., 61 Idaho 660, 106 P.2d 113.

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 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.

On Rehearing.