On the trial, after introducing evidence of the injury and death of the employee, followed by evidence of his average weekly earnings, the record recites:
"At that point in the trial the following occurred:
" 'Mr. Denson: You are not denying you got a notice or anything of that kind?
" 'Mr. Smith: No, Mr. Denson, just a minute. Your honor, we went into this part of it on the other trial, and I will waive every question except question as to what was the immediate cause of his death.
" 'The Court: Yes; I awarded him $12 a week.' "
It is earnestly insisted that this was an agreement in open court waiving further evidence and authorizing the inclusion in the judgment of the item of burial expenses.
The occasion and substance of the agreement indicates a purpose to waive all questions going to the right of recovery save that of the ultimate cause of death, and was not intended to control the amount of the allowance to which this plaintiff was entitled. That the trial court so understood is made clear by the fact that he did not base his finding of average weekly earnings on the former finding, but made a new finding on evidence offered upon this trial, and awarded compensation on a basis of higher earnings than in the former trial. Having obtained an allowance on a different and higher basis, it can hardly be contended by plaintiff that the former decision fixed the amount of recovery in this case. But, conceding that the parties intended to limit the issue here to the sole question of cause of death, looking to the record in the former suit for all other findings, this in no way involved an admission of the employer's liability for burial expenses. That question did not and could not arise before the death of the employee. It was not made an issue in pleadings or evidence on either trial. Unless we declare an admission of liability for compensation carries with it an admission of liability for $100 on account of burial expenses, whether claimed or not, we cannot hold the parties had any such item in mind at the time of the waiver or agreement relied upon. The other side contended that this agreement called upon the trial court to ascertain and make deduction of the amount paid the employee before his death. Both contentions are alike untenable.
Application overruled.