Am. Mut. Liab. Ins. Co v. Hamilton

• Decision Date: 23 September 1926
• Citation: 135 S.E. 21
• Parties: AMERICAN MUT. LIABILITY INS. CO. et al. v. HAMILTON.
• Court: Virginia Supreme Court

135 S.E. 21

AMERICAN MUT. LIABILITY INS. CO. et al.

v.HAMILTON.

Supreme Court of Appeals of Virginia.

Sept. 23, 1926.

Error to Circuit Court, Dickenson County.

Suit by the American Mutual Liability Insurance Company and another against Elmer Hamilton. Decree for defendant, and complainants bring error. Affirmed.

J. H. Rives, Jr., and S. S. P. Patteson, both of Richmond, for plaintiffs in error.

G. Mark French and S. H. & Geo. C. Sutherland, all of Clintwood, for defendant in error.

CHICHESTER, J. This is a suit in chancery in which the appellants, hereafter called complainants, are collaterally attacking an award of the Industrial Commission of Virginia made on the 27th day of February, 1924, in favor of Elmer Hamilton, hereafter called claimant, upon his application for a hearing for alleged permanent injury received while in discharge of his duties to his employer.

The McCorkle Company, lumber manufacturers, of Dickenson county, Va., was the employer, American Mutual Liability Insurance Company was the insurance carrier, and Elmer Hamilton was the employee. An appeal was taken from the award of the Industrial Commission to the circuit court of Dickenson county and the award affirmed in every particular.

The complainants failed to appeal from the judgment of the circuit court, but later filed their bill in chancery attacking the award of the Industrial Commission and the judgment of the court upon appeal from the award, collaterally, declaring it to be void upon the ground that the Industrial Commission had no jurisdiction to hear the application of j claimant for the reason that the applicationfor a hearing was not filed with the commission within one year from the date of the injury, as required by section 25 of the Workman's Compensation Act (Acts 1018, c. 400), and praying for an injunction to enjoin and restrain claimant, his agents, etc., from issuing any execution, etc., on the award.

The reason given for the failure to appeal from the judgment of the circuit court is that the clerk of the court failed, as directed by the final order, to notify counsel for complainants of the judgment within 30 days of the entry thereof, and that counsel did not know judgment had been entered in the time within which an appeal could have been taken from the judgment. This is immaterial, however, as the judgment, if void, as is claimed, is assailable either by direct attack, upon appeal, or collaterally in the instant proceeding.

The contention of complainants as stated in their bill is that the Industrial Commission found as a fact that "it is beyond question that the application for hearing was filed over two years after the accident, " and that, this being true, under section 25 of the Workmen's Compensation Act the commission was without jurisdiction to hear the application, the claim being "forever barred" by the limitation provided by the statute, and It is pointed out that this defense of the statute of limitations was made before the Industrial Commission and before the circuit court upon appeal from the award. This is to say, it is contended that when the commission found as a fact that more than two years had elapsed between the date of the injury and the application for a hearing, the claimant was forever barred from a hearing, the commission was deprived of jurisdiction to hear the application, and any award of the commission or judgment of a court upon appeal in favor of the claimant was null and void.

There were three defenses filed by the insurance carrier before the Industrial Commission:

(1) That there was no accident arising out of and in the course of the employment.

(2) Failure to file notice with the employer within 30 days following the accident. Section 23 of the Act.

(3) Failure to file claim for compensation with the commission within one year following the accident. Section 25 of the Act.

The first defense was disposed of by the commission upon some conflict of evidence by the finding, as a fact, that there was an accident and that it arose out of and in the course of claimant's employment and that it occurred June 18, 1920.

The second defense was disposed of by the commission by the finding as a fact, from the evidence, that McCorkle knew of the accident within 3 weeks beyond the 30 days following the accident, and that the claimant's immediate superior knew of it in much less time and that in any event "no prejudice to the employer's right was shown to have resulted, and the defense is without merit." Section 23 of the Workmen's Compensation Act declares:

"Every injured employee or his representative shall immediately on the occurrence of an accident or as soon thereafter as practicable, give or cause to be given to the employer a written notice of the accident, and the employee shall not be entitled to physician's fees nor to any compensation which may have accrued under the terms of this act, prior to the giving of such notice; unless it can be shown that the employer, his agent or representative, had knowledge of the accident, or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person; but no compensation shall be payable unless such written notice is given within thirty days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice, and the commission is satisfied that the employer has not been prejudiced thereby."

It is not necessary to refer again to these defenses. The case here rests upon whether the award was void for the reason alleged in the third ground of defense, supra.

The commission found as a fact that the injury occurred on June 18, 1020, and that the claim was not filed with the commission until June, 1922, two years later.

Section 25 of the Workmen's Compensation Act declares:

"The right to compensation under this act shall be forever barred, unless a claim be filed with the Industrial Commission within one year after the accident, and, if death results from the accident, unless a claim therefor be filed with the commission within one year thereafter."

The contention of the complainants is that this section is not a statute of limitation in the ordinary sense nor is it subject to the qualifications of section 5825 of the Code, as the statutes of limitation in chapter 238 are, but that compliance with the requirement to tile the claim within one year of the accident, etc., is jurisdictional, and that if for any reason the claim is not filed within the year, any award by the Industrial Commission upon such a claim is void, whatever the reason for the failure to file claim within the time prescribed.

The claimant met this contention by the assertion:

That in this case an agreement was entered into within 12 months of the accident by the insurance company, the employer, and the claimant, and this agreement was filed before the Industrial Commission and was written upon forms furnished by the Industrial Commission of Virginia. That an agreement, under the industrial law, is the same and answers the purpose of a claim formally filed.

That the claimant was prevented from fil-ing his claim by the fraudulent practices of the employer and the insurance company. That by the present Virginia statute of limitations fraud stops the running of the statute in all cases.

That the defendants are estopped from claiming the bar of the statute of limitations by their conduct in telling the claimant that they were working out his case under the Compensation Law, in paying his hospital expenses, in paying him compensation, in furnishing him with settlement sheet, and by other acts inconsistent with their not relying upon the bar of the statute.

Upon this clear-cut issue the commission held: First, that the course of conduct of the parties was equivalent to an agreement having been entered into for the payment of compensation, and that, when an agreement has been entered into between the parties and an award issued thereon, this has all the binding effect of an award issued after formal hearing before the commission, and, while no formal agreement was entered into in this case, the commission was of opinion, under the peculiar circumstances of the case, it should be held to constitute an agreement such as is contemplated by the act. The commission then concludes:

"If this be true, then the statute of limitation defense does not apply. It is a well-settled principle of the Compensation Law that:

" 'After an award, and during the whole compensation period applicable to the injury in question, the relation of the commission to the award is similar to that of a court to a judgment during the term at which it is rendered.'

"See Thompson v. Towle, 08 Conn. 738, 120 A. 503.

"A total disability may entitle a claimant to compensation for a period of 500 weeks, under the provisions of section 30. A partial disability may entitle him to compensation for 300 weeks, under the provisions of section 31."

Second, it held, that if it was not correct in the view that the agreement in this case was equivalent to an award, the claim should not be barred for the reason that under the facts of this case the doctrine of estoppel should be applied.

Before discussing the relative merits of the positions taken on the issue of the validity of the award, it is necessary to state the facts found to be true by the commission bearing upon this issue.

As stated, the accident occurred on June 18, 1920. Claimant was getting an average wage of $30 a week plus a bonus of $1 a day. Three days after the accident claimant went to see Dr. McNeer. Then he went to the hospital at Dante. In July he went to Richmond upon advice of McCorkle, the superintendent. He was accompanied to Richmond by S. V. McCorkle, brother of the superintendent. Shortly after the accident Mr. McCorkle told him he would get $10.50 a week and expenses....