Haugse v. Sommers Bros. Mfg. Co. , 43 Idaho 450 ( 1927 )

I cannot agree that the agreement between Haugse and the insurance carrier was an agreement "to pay him $1,920, at the rate of $16 per week for 120 weeks, payable monthly," or that the agreement approved by the board "was in the nature of a judgment for liquidated damages for the loss of the eye," or that "the right to enforce payment survived." There was no greater or any other obligation created by the agreement than existed, and would have been awarded, under the provisions of the act, for such agreements can only be approved by the board "when the terms conform to the provisions of this chapter." It was not a promise to pay, but specifically recites that ". . . . It is agreed between the parties hereto that compensation payments, at the rate of sixteen and no/100 ($16.00) dollars per week for one hundred twenty (120) weeks amounting to nineteen hundred twenty and no/100 ($1,920.00) dollars, should be paid to said party of the first part by the party of the second part, as and for all sums of money due or to become due by reason of, or on account of, said permanent disability. . . . ."

It is not such an agreement as was construed in Forkas v.International Silver Co., 100 Conn. 417, 123 A. 831, cited in the majority opinion, for therein the promise is recited as "the promise to pay . . . . is unconditional."

It is a simple agreement as to the facts and the amount that should be awarded under the facts and the law, and, when approved, constituted simply an award as contemplated by C. S., sec. 6263, for under C. S., sec. 6263, "if the compensation is not settled by agreement," a hearing is had for the same purpose. Under C. S., sec. 6271, a certified copy of a memorandum of agreement approved by the board may be, as any other award, filed in the district court and enforced therein. Under C. S., sec. 6269, the board has authority, on the ground of a change of conditions, to end, diminish or increase compensation previously "agreed upon or awarded," but not to change compensation thertofore fixed by commutation under C. S., sec. 6240. C. S., sec. 6274, provides for filing in the district court of a certified copy of the decision of the board ending, diminishing or increasing compensation, upon which the court shall revoke or modify its prior decree accordingly.

The main opinion entirely disregards, and renders meaningless, the provision of C. S., sec. 6240, that the liability of "the employer for compensation" may be commuted to one or more lump sums, in which commutation "The probability of the beneficiary's death before the expiration of the period which he is entitled to compensation shall be determined. . . . The probability of the happening of any other contingency affecting the amount or duration of the compensation shall be disregarded."

I do not agree that compensation for the loss of an eye or any other member of the body, under C. S., sec. 6234, is allowed as for loss or damage. It is allowed "in addition to all other compensation" upon the basis of a fixed loss of efficiency, otherwise a permanent partial disability, for it is allowed in addition to what might be an allowance of temporary total or partial disability due to the time lost in curing the injury. When the employee has recovered from the injury, the compensation, under C. S., sec. 6234, is for a permanent partial disability. In fact, the parties in the agreement so treat of it and recite it no less than three times as "a permanent disability."

I cannot agree that the compensation in this case is intended as for damage on any basis of damage as such understood in the old common-law action. The fact that it is given regardless of negligence or blame completely negatives consideration of it as damages, but it is compensation for incapacity definitely fixed, and can only endure during the life of the employee. The whole spirit of the act denies damages, but gives compensation on a basis of loss of efficiency.

The provisions of C. S., sec. 6240, for commutation, with the further provision of C. S., sec. 6269, that payments thus commuted to a definitely fixed present amount payable shall not be subject to modification, lead me to believe that no vested right in an uncommuted, although otherwise determined, compensation was intended, or can be held to exist under the act. I am satisfied to base my dissent, so far as citing authorities is concerned, upon Wozneak v. Buffalo Gas Co.,175 A.D. 268, 161 N.Y. Supp. 675.

I am authorized to state that Mr. Justice Givens concurs in this opinion.

Petition for rehearing denied.