Iverson v. Gordon Farming Co., Inc.

BISTLINE, Justice,

concurring in reversal, but not as to scope of further proceedings.

I.

The Court’s opinion, insofar as it reverses and explains the reversal, is soundly written, and I am in agreement. From there I would direct that on remand the Commission again examine the issue of benefits due Iverson, as the Court’s opinion provides, but I do not see the wisdom, logic, or necessity of asking for any further consideration of manifest injustice. In Sines v. Appel, 103 Idaho 9, 644 P.2d 331 (1982), I pointed out in my concurring opinion that the legislature in enacting I.C. § 72-719(3) conferred upon the Commission broad equitable powers akin to those possessed by the district courts. Today it is in order to amplify on that comparison of district court procedures in granting new trials to those of the Commission in reopening for manifest injustice.

The language of I.C. § 72-719(3) bears a strong resemblance to the statutory provisions which in 1971 governed the granting of new trials in the district courts, and it is readily believed that the sponsors of I.C. § 72-719(3) had those provisions well in mind. A district judge could under the provisions of I.C. § 10-608 grant a new trial on its own motion without the application of either party, as well as upon the application of a party.1 Where the district court of its own motion granted a new trial, absent an appeal the new trial took place, and it is to be very much doubted that there is a reported or unreported case in which, at the close of the second trial, the district court purported to retroactively retract the order which had granted the new trial.2 So with a proceeding under I.C. § 72-719(3), once a case has been reopened for reconsideration of the issues formerly tried, it would be an anomaly of the law if, after *532the evidence was in, or during the progress of the case, the Commission could reverse the projection and recant its order. Yet that is what it has done in this case, most likely because, not having the benefit of Sines v. Appel, supra, and two members of the Commission not likely aware of the 1971 statutory provisions governing district court new trials, the Commission felt insecure in the exercise of the new power conferred upon it.

When a trial court grants a new trial in the belief that there has been a miscarriage of justice, it is not encumbent upon the judge of that court to make any findings of fact upon which are based the conclusion to grant a new trial. Moreover, in the federal system there is no right of appeal. In Idaho, although an appeal may be taken from such an order, the challenge is most generally denied, and the only result is a delay in the second trial.

The second trial may or may not be indicative of the trial court’s initial belief that there was indeed a miscarriage of justice. The only gauge of accuracy of the earlier belief is the result of that second, and perhaps even a third trial. The point is, however, that the new trial, once ordered, does take place, and neither during that trial or after does the trial court have any authority to call a halt and reverse its own order granting the trial. (If there is such authority, I am unaware of its having ever been exercised.) If the second trial, whether to the court or jury being of no moment, produces the same result as the other, for certain it appears that there likely was not the miscarriage of justice which the court earlier perceived. But it is a judgment call and once made, other than for an immediate motion for reconsideration, it governs the ensuing procedure. At the second trial, the parties are not required to, nor should they, attempt to litigate the issue of the propriety of the order which has been entered. It is relegated to the status of functus officio.

So with a Commission order reopening for manifest injustice. Again, this is a judgment call, and one that need not be made with any specificity, and indeed ordinarily cannot be. Whether it is a sound decision will stand or fall on the outcome of the hearing which flows from the reopening. The Commission should not be given this broad power and then fettered with a court rule that would require them to justify an exercise of it. I fear the Court’s opinion inadvertently and perhaps unwittingly tends to go in that direction.

II.

Implicit in the findings of the referee, which were adopted by the Commission, is that Iverson suffered an industrial accident while working for and employed by Gordon Farming. The referee also found that as a result of his industrial accident Iverson incurred certain medical expenses. Although the referee did not make a finding as to the amount of medical expenses incurred by Iverson, the record reveals that as a result of the accident Iverson incurred medical expenses of between $1,800 and $2,400. To the average working man or woman, this sum is no doubt significant. In fact, in this case, the record shows that Iverson has considered filing bankruptcy if his claim against Gordon Farming is unsuccessful, since he has no other way to pay his medical bills. Regardless of whether Iverson can establish a means by which to compute his wages, the fact that he received nothing when he was clearly entitled to at least $1,800, with equal clarity demonstrates that the original dismissal of Iverson’s claim resulted in manifest injustice and the Commission was justified in reopening the case. That this was a case of manifest injustice is especially so since the dismissal of Iverson’s claim resulted from his attorney’s unauthorized stipulation. Thus, while I agree that the case should be remanded to the Commission in order to determine the extent to which Iverson is to be compensated, I would also hold that the Commission findings on the issue of manifest injustice amount to a post mortem attempt to substantiate the Commission’s original order to reopen — findings that are not at all necessary.

*533There will be some occasions where the Commission may reopen and the second hearing produces the same result as the first hearing. This would be prima facie evidence that there may not have been any manifest injustice. In either event, where the Commission reopens, the subsequent result will tend to establish the appropriateness or inappropriateness of the reopening order — which is purely of academic interest, as where a district court grants a new trial. In Sines, however, it was not an academic question because such relief had been denied. On a constant basis this Court applies such a distinction in differentiating between the standards used in appeals from an order denying a new trial and the standards used in appeals from an order granting a new trial.

. The Court promulgated the identical provision in I.R.C.P. 59(d).

. In Spivey v. District Court, 37 Idaho 774, 219 P. 203 (1923), the district court tried the case, entered judgment and denied a motion for a new trial. The court, however, later entered an order granting a new trial, in effect, reversing its original order. This Court held that the judge had no jurisdiction to grant a rehearing on the order and stated: “[T]he clear intent for statutes is that an order either granting or denying a new trial is final and the only remedy is by appeal.” Id. at 781, 219 P. at 204.