On Rehearing. After consideration of this appeal upon rehearing, aided by additional briefs and oral argument, we have decided to change the disposition thereof. The defendants assailed vigorously the correctness of our conclusions upon the questions of jurisdiction and estoppel arising on invited error. We find no occasion to devote further time to a consideration of these questions except to announce that notwithstanding anything said or held on those subjects in our former opinion, we think the ends of justice require a different disposition than that heretofore announced.
In the first place, the defendants would not be in the position they now find themselves, *Page 541 to-wit, judgment debtors on a cause of action which never existed, nor the plaintiff in the position where an unconditional reversal would place her, to-wit, an irretrievable loss of the right to litigate seasonably a cause of action asserted but abandoned below after defendants' acceptance of liability upon the complaint filed as a death claim, but for the fact that counsel for both parties and the trial court as well moved and acted under the misapprehension — the erroneous assumption — that the facts disclosed an actionable death claim.
It does not appear how the misapprehension arose, unless by reason of all concerned overlooking the fact that, while the cause of action for death is conferred by 1941 Comp., § 57-917, the limitation of such claims to cases where death occurs within one year from date of injury, appears in the second sub-paragraph of the lengthy succeeding section 57-918 in connection with the award for compensation and burial expense under death claims. But it is unimportant to determine exactly how the oversight occurred when we attribute it to inadvertence. The significant fact is that this misapprehension, shared by all counsel and the court, renders an affirmance unjust to defendants and a reversal equally so to the plaintiff, if she be not restored to the position occupied upon abandoning her first cause of action when she accepted defendants' admission of liability under the second.
It is to be remembered that the plaintiff's claim was dual in character. She claimed first under the provisions of 1941 Comp., § 57-913, compensation for the unexpired portion of the 550 weeks to which her deceased husband would have been entitled, had he lived. If not so entitled, or in the alternative, she asked for compensation for the period of 300 weeks under 1941 Comp., §§ 57-917 and 57-918, as a death claim. The defendants accepted liability for compensation as a death claim for which there was in fact no liability, whereupon the plaintiff abandoned further claim under § 57-913.
The situation is such that if we should reverse the judgment and remand the cause for a new trial, the defendants by invoking the doctrine of law of the case could deny to the plaintiff a hearing on her claimed right to compensation under 1941 Comp., § 57-913, as a ground of recovery not insisted upon at the first trial. Sanchez v. Torres, 38 N.M. 556, 37 P.2d 805. The defendants have expressed entire willingness to have the plaintiff awarded whatever compensation, if any, she may be entitled to under provisions of the Workmen's Compensation Act. Accordingly, we have concluded to reverse the judgment and award a new trial upon condition that the defendants waive any objection otherwise available to them to a trial upon the merits of plaintiff's right, if any, to an award under the provisions of 1941 Comp., § 57-913, as compensation to which the decedent would have been entitled had he lived.
Decisions supporting our right to attach such a condition to reversal in the interest of justice are not wanting: 5 C.J.S., Appeal and Error, p. 1425, § 1923; Williams *Page 542 v. Kemp, 33 N.M. 593,273 P. 12; Steinau v. Gorham, 56 A.D. 618, 67 N.Y.S. 628; Hall v. McConey, 152 Mo. App. 1, 132 S.W. 618; Town of Ohio v. American Surety Co., 257 A.D. 912, 12 N.Y.S.2d 205; Beni v. Frasca, 259 A.D. 844, 19 N.Y.S.2d 223; Hyman v. City of New York, 263 A.D. 896, 32 N.Y.S.2d 601; Forsha v. Nebraska Moline Plow Co., 94 Neb. 512, 143 N.W. 453; Caniano v. Dependable Amusement Co., 123 N.J.L. 419, 8 A.2d 830; Culver v. Lehigh Valley Transit Co., 322 Pa. 503, 186 A. 70; Gates v. Morris,123 W. Va. 6, 13 S.E.2d 473, 134 A.L.R. 791; Podell v. Gronik,229 Wis. 238, 282 N.W. 53; Lew v. Lee (Can.) S.C.R. 612, 1 D.L.R. 179, 62 A.L.R. 1043. Cf. Supreme Court Rule 17, 1941 Comp., § 19-201(17).
In 5 C.J.S., Appeal and Error, § 1923, p. 1425, the author states:
"An appellate court may attach to a reversal of a judgment or decree such conditions or limitations as are warranted or required by the circumstances of the particular case; but when appellant or plaintiff in error is entitled to a reversal as a matter of right, the appellate court has no power to impose conditions."
In Steinau v. Gorham, supra [56 A.D. 618, 67 N.Y.S. 629], the court said:
"We are satisfied from the record in this case that there was a misapprehension as to the rights of the parties before the court at the time of the trial, and that probable injustice has resulted from such misapprehension. We are of the opinion that this situation can only be completely remedied by a retrial of all the issues involved in the case. The defendants have taken no exception entitling them as a matter of right to a retrial as to their counterclaim, which we might possibly grant as a matter of favor upon their appeal from the order denying the motion for new trial. Our conclusion, therefore, is that, if the defendants will stipulate to agree to a reversal of the whole judgment, the same will be reversed, without costs to either party; if not, the order denying the motion for a new trial will be affirmed, with costs."
In Hall v. McConey, supra, the decision of the court on this question is epitomized in a paragraph of the syllabi, as follows:
"The appellate court, on reversing a decision refusing to set aside a default judgment against defendant, may require him to answer to the merits, and waive a technical defense, that the court did not obtain jurisdiction over his person."
If we felt that counsel on either side were guilty of bad faith, as to the plaintiff in the matter of claiming under § 57-917 compensation for a death claim, or as to the defendants in the matter of accepting liability therefor, we should decline to extend aid in extricating either from the jeopardy in which the state of the record may leave the parties. But the high standing and reputation of counsel on each side, both below and before us, repudiate any idea that claim under § 57-917 for death was put forward as a bait by plaintiff to entrap unwary counsel *Page 543 who might later appear for defendants, knowing recovery could not be had thereunder; or, that when counsel did come in for defendants, they admitted liability under § 57-917, with the preconceived idea of urging non-liability thereunder as a jurisdictional question in this court, when too late for the plaintiff to recall her abandonment of claim under § 57-913.
On the contrary, we feel quite assured in our own minds that both assertion and acceptance of liability under § 57-917 as a death claim was in entire good faith on both sides, due to inadvertence of counsel, and that the trial court did not pause to investigate or question a liability which counsel for all parties agreed existed.
Nor is the plaintiff to be absolved from all blame for creating the misapprehension into which counsel for the defendants and the court as well so readily fell. It was counsel for the plaintiff below who first contended, as an alternative basis for recovery, that liability for a death claim existed under § 57-917, overlooking the obvious fact that by the language of the very next section, to warrant recovery, death must have occurred within one year of the injury which caused it. Under the circumstances here present, the plaintiff cannot justly impose upon defendants as for invited error so heavy a consequence as an affirmance would entail, if the parties can be restored to exactly the same position they occupied when the mistake, shared by each and first evidenced by her in the proceedings below, was made.
In view of the conclusion reached, the allowance by our former opinion of attorneys' fees to the plaintiff for their services in this court, should be vacated without prejudice to the plaintiff's right, if any, should she subsequently prevail, to have such services made the subject of an allowance. In this connection, and in fairness to Mr. Carl H. Gilbert, who has appeared and argued the cause for plaintiff in this court, it should be mentioned that he did not appear in the cause below.
It follows from what has been said that the judgment of the trial court should be reversed and the cause remanded for a new trial upon condition that the defendants shall within the period allowed for motion for rehearing file herein a written consent to waive any objection to a trial upon the merits of defendants' liability, if any, under 1941 Comp., § 57-913, for compensation for the unexpired portion of the 550 weeks to which the decedent would have been entitled, had he lived; otherwise the judgment of the trial court will stand affirmed. The defendants will pay the costs of this appeal.
It is so ordered.
MABRY, BICKLEY, BRICE, and THREET, JJ., concur. *Page 544