Homan v. Belleville Lumber and Supply Co. , 104 Ind. App. 96 ( 1937 )

DISSENTING OPINION. I cannot agree with the conclusion reached in the prevailing opinion that the Industrial Board had power to vacate its award of June 19, 1935, on the grounds alleged in the applications for vacation thereof, which applications were filed in this case and which grounds were shown by the evidence in this case. That holding assumes that the Industrial Board has a power which the legislature did not confer upon it expressly or by "necessary implication." (See In Re Moore, In Re Lott (1923),79 Ind. App. 470, 138 N.E. 783.) That holding in effect assumes that the Industrial Board has the power to grant a new trial on the ground of newly discovered evidence.

Although the facts are set out in detail in the prevailing opinion, I deem it advisable to restate them for the purpose of clarifying my views concerning the case.

Paul H. Homan died on the 29th day of May, 1934, as a result of injuries received on May 28, 1934, in a collision of the automobile which he was driving with a train of the New York Central Railroad Company, at a street intersection in South Bend. He was an employee of appellee Belleville Lumber and Supply Company.

On July 30, 1934, appellants filed their application, as dependents of said decedent, for adjustment of their claim for compensation. On December 22, 1934, appellants filed their written motion to dismiss their said application. On December 26, 1934, appellant "Mary Virginia Homan, as administratrix of the estate of said Paul H. Homan . . . petitioned for and obtained an order of the St. Joseph Superior Court, . . . having probate jurisdiction of said estate, authorizing and directing her to accept the sum of five hundred dollars ($500.00) from the New York Central Railroad Company in full settlement of all claims for the death of the said Paul H. Homan and to execute a full and complete release therefor . . . On December 31, 1934, the said Mary Virginia Homan, as administratrix of the estate of Paul H. Homan, executed a full and complete release to the New York Central Railroad Company for the death of the said Paul H. Homan, and as consideration for said release received the sum of five hundred dollars ($500.00) from the said New York Central Railroad Company . . ." (Quotation from finding of the Industrial Board.)

On January 2, 1935, the Industrial Board granted appellants' said motion to dismiss their said claim for adjustment of their claim for compensation.

On January 11, 1935, appellants filed another application for adjustment of their claim for compensation. A hearing was had upon said application. Upon review, the Industrial Board, on June 19, 1935, granted appellants an award of compensation for three hundred weeks, beginning May 29, 1934 (date of decedent's death).

Appellee Lumbermen's Mutual Casualty Company was the insurance carrier for said Belleville Lumber and Supply Company. Neither of said companies knew until October 21, 1935, that said settlement had been made with the New York Central Railroad Company. On November 2, 1935, appellee Belleville Lumber and Supply Company filed its "application for review on account of mistake" in said award of June 19, 1935, and on January 30, 1936, appellee Lumbermen's Mutual Casualty Company filed its "application to correct and vacate" said award of June 19, 1935, "on account of fraud, duress, mistake and gross irregularity."

Hearing was had upon said applications by the full Industrial Board, which found facts in effect as above set forth, and further found that said award of compensation "was based on mistake of fact and gross irregularity." The board in its award decreed that said award of compensation "should be vacated," and that appellants take nothing on their application filed January 11, 1935.

The error assigned on appeal is that the award is contrary to law.

Appellants contend the Industrial Board had no power to vacate the award of June 19, 1935, which granted them compensation. They contend further that "no appeal having been taken from the full board's award of compensation, that award was conclusive and binding upon the parties and the board with respect to all conditions existing at the date thereof."

Appellees concede that it is the rule that where no appeal is taken from an award of the full Industrial Board the award is final and conclusive upon the parties, but contend that "that rule . . . is based upon the assumption that the award conforms to law and that it was not fraught with mistake, or procured by fraud or irregularity." Appellees contend further, "There is no finality to an award based upon mistake, fraud or gross irregularity, because such an award does not conform to the law." Appellees contend further that the award of compensation in the instant case was based upon mistake, inasmuch as the Industrial Board, in absence of evidence to the contrary, assumed that no settlement had been made by appellants with any third party for its liability for the death of decedent.

"It has been many times held that boards created by statute, such as the Industrial Board of this state, are creatures of limited jurisdiction, that they are administrative bodies and as to jurisdiction borrow nothing by mere implication; . . ." Martz v. Grasselli Chemical Co. (1927), 87 Ind. App. 400, 405, 162 N.E. 737.

"It is fundamental that as to governmental administrative boards, such as our Industrial Board, they have no powers other than those granted, either expressly or by necessary implication." (Our italics.) In re Moore, In re Lott (1923), 79 Ind. App. 470, 475, 138 N.E. 783.

Sec. 59 of the Indiana Workmen's Compensation Act (Sec. 40-1510 Burns 1933, § 16435 Baldwin's 1934) gives the Industrial Board jurisdiction to hear and determine disputes between parties in a summary manner.

Sec. 45 of said Act (Sec. 40-1410 Burns 1933, § 16421 Baldwin's 1934) is the only section which expressly gives the IndustrialBoard jurisdiction to modify or change awards previously made. That power to modify or change awards is expressly granted, however, by said statute only in cases where there has been a "change of conditions," and to "correct any clerical error ormistake of fact in any finding or award."

Although appellees cite Sec. 45, supra, of said Act in support of the contention that the Industrial Board had jurisdiction to vacate the award of compensation, they do not contend that there was a "change of conditions," in the instant case, or that the Industrial Board, by the award appealed from, was merely correcting a "clerical error or mistake of fact in . . . (the) . . . finding." Appellees contend, however, "It is within the jurisdiction of the Industrial Board and it has the power and authority to review, vacate and correct any of its awards, for fraud, duress,mistake or gross irregularity, affecting substantial rights, when an application therefor is seasonably made." CitingFrankfort General Insurance Co. v. Conduitt et al. (1921),74 Ind. App. 584, 127 N.E. 212; Aetna Life Ins. Co. v. Shiveleyet al. (1921), 75 Ind. App. 620, 121 N.E. 50; Wyatt Lumber andCoal Co. et al. v. Hartford Acc. and Indemnity Co. et al. (1927), 85 Ind. App. 548, 154 N.E. 776; Builders andManufacturers Mut. Cas. Co. v. Evans et al. (1928),88 Ind. App. 170, 163 N.E. 529.

In Frankfort General Insurance Co. v. Conduitt et al.,supra, this court did say (p. 594):

"We hold that the Industrial Board has the power in case of fraud, duress or mistake to vacate its approval of a compensation agreement, and to entertain an application for that purpose. . . ."

In that case this court quoted with approval from In re Stone (1917), 66 Ind. App. 38, 117 N.E. 669, an opinion on a certified statement of facts, where an employer and employee had entered into a compensation agreement which was approved by the Industrial Board, and about six weeks later the employee filed a petition alleging a mutual mistake as to the terms of said agreement and as to the amount of compensation payable thereunder. This court in In re Stone, supra, in discussing the question as to whether the Industrial Board had jurisdiction to consider said petition, said (p. 43):

". . . we are of the opinion . . . that the Industrial Board under its broad supervisory powers expressly conferred by the statute creating it would have the power to hear and determine the petition before it at any time before the case was finally disposed of. Its jurisdiction in such matters is not dependent upon the setting aside of the agreement. Such jurisdiction exists over the subject-matter and the parties notwithstanding the agreement, whether it be an agreement upon the facts giving the board jurisdiction only, or whether it be a compromise settlement of all compensation due under the act and it is broad enough to include all disputes between the employer and the injured employee or his dependents with reference to the compensation to be paid or received under the act."

Those statements were quoted with approval in FrankfortGeneral Insurance Company v. Conduitt et al., supra.

It should be noted that said statement is not supported by any authorities in the opinion, and that it is dictum. (See 65 A.L.R. 165, note.) Earlier in the opinion the court said (p. 43):

"It is apparent from the agreement that it (the agreement) is incomplete in that no compensation is agreed upon for and during partial disability. Under such circumstances the board, not having relinquished its jurisdiction of the parties or the subject-matter, has the right upon proper petition to hear the parties and make such further provision for compensation as the facts warrant, not exceeding the maximum provided in the act, the same as though no agreement had been reached."

Therefore, In re Stone, supra, is not authority for said holding in the case of Frankfort General Ins. Co. v. Conduitt,supra.

In the Frankfort General Insurance Company case, supra, this court also quoted with approval from Aetna Life Ins. Co. v.Shiveley et al., supra (opinion by this court November 27, 1918, petition to transfer dismissed by Supreme Court May 20, 1931) as follows (p. 633):

"The board (Industrial Board) is not expressly authorized to vacate an order approving such an agreement (compensation agreement) as is involved here. It is expressly authorized to approve such an agreement fairly made, and conforming to the act. It necessarily follows that as an incidental power the board is authorized to determine whether such an agreement was fairly made and whether it does conform to the act. But when the board's approval has been procured by fraud or is the result of mistake or the like, and where as a consequence the agreement and its approval have no just foundation upon which to stand it seems to us apparent that in any pending proceeding the board as an incidental power has a right to determine such fact, and if found to exist, annul the order approving the agreement." (Our italics.)

It should be noted that that statement is not supported by any authorities in the opinion (and) that the principal question, to wit, whether or not an order of the Industrial Board refusing to vacate a previous award be reversed, was determined upon other grounds, to wit, upon the general ground that "through inadvertence this proceeding did not receive that careful consideration that usually characterizes action by the board." (Quotation from Aetna Life Ins. Co. v. Shiveley, supra.) That case is, therefore, not controlling authority for said holding in the Frankfort General Insurance Company case, supra.

The basis for this court's decision in the Aetna Life Insurance Company case, supra, is further indicated by the following language taken from the opinion, to wit (p. 636):

"It appears affirmatively that the board in denying the application, did not in fact consider it. . . . We are unable to determine what would have been the fate of the application had it been considered from the proper viewpoint. . . . The application presented a question of fact, and such questions are primarily for the board."

I disagree with the statement in Aetna Life Insurance Company case, supra, to the effect that the Industrial Board acquires the power to vacate an order based on fraud, mistake "or the like" as an incident to the power to make the award. The only powers which the Industrial Board has, and which are not expressly given, are those which are granted by necessary implication. (See In re Moore, In re Lott, supra.) It can not be said that the power to vacate an award is necessarily implied from the power to make an award. Lack of power to vacate its awards does not prevent the Industrial Board's full performance of its power to make awards. (See Brown v. Goble [1884], 97 Ind. 86, where it was held that a Justice of the Peace Court does not have power to vacate or annul judgments; similar holding as to a city court in Steinmetz v. G.H. Hammond Co. [1906], 167 Ind. 153, 78 N.E. 628; similar holding as to Board of County Commissioners,State ex rel. v. Richey [1930], 202 Ind. 116, 172 N.E. 119.)

This court in Frankfort General Ins. Co. v. Conduitt,supra, cited no other authorities and stated no additional reasons in support of said holding.

Wyatt, etc., Coal Co. v. Hartford Acc., etc., Co., supra, and Builders, etc., Casualty Co. v. Evans, supra, cited by appellees, follow said holding in Frankfort General Ins. Co. v.Conduitt, supra, but do not state any further reasons or cite any additional authorities in support thereof. The same result could have been reached in Wyatt, etc., Coal Co. v. HartfordAcc., etc., Co., supra, by holding that the Industrial Board did not have power to vacate an award and declaring such proceeding a nullity. In re Stone, supra; Aetna Life Ins. Co. v. Shiveley,supra; Frankfort General Ins. Co. v. Conduitt, supra; Wyatt,etc., Co. v. Hartford Acc., etc., Co., supra; Builders, etc.,Co. v. Evans, supra, insofar as they conflict with this opinion, should be overruled.

In the prevailing opinion it was held, inferentially at least, that the Industrial Board was without jurisdiction of this case after appellant, Mary Homan, accepted the five hundred dollars ($500.00) from the railroad company in settlement of all claims for the death of her husband. It is my opinion that the acceptance of said money did not affect the jurisdiction of the Industrial Board with reference to this case, but that the acceptance of said money was merely a matter of defense against the application for compensation, which could have been pleaded and proven before the Industrial Board. The question may arise how a person against whom an award based on fraud or mistake, which is not a "clerical error or mistake of fact in any finding or award," is made, can obtain relief therefrom. In that regard it is sufficient to say that that question is not presented. I submit, however, that the following cases support the idea that courts of equity have such power, to wit: Steinmetz v. G.H. Hammond Co. (city court),supra; Greenwaldt v. May (1891) (justice of the peace court),127 Ind. 511, 27 N.E. 158; Panozza v. Ford Motor Co. (1931),255 Mich. 149, 237 N.W. 369, as to department of labor and industry; Malone v. United Zinc and Smelting Corp. (1936),175 Okla. 643, 54 P.2d 360, as to State Industrial Commission.

It is my opinion that the Industrial Board did not have power to vacate said award of June 19, 1935, and, therefore, the award of the Industrial Board, from which this appeal was taken should be reversed with instructions to the Industrial Board to set aside said award as a nullity, and to strike from its files the applications upon which said award was based.

Bridwell, P.J., concurs.