City of Norfolk v. Bennett

• Decision Date: 08 March 1965
• Citation: 140 S.E.2d 655,205 Va. 877
• Parties: CITY OF NORFOLK v. Earl Allen BENNETT.
• Court: Virginia Supreme Court

Page 655

140 S.E.2d 655

205 Va. 877

CITY OF NORFOLK v. Earl Allen BENNETT.

Supreme Court of Appeals of Virginia.

March 8, 1965.

Rehearing Denied April 26, 1965.

Robert D. Holland, Asst. City Atty. (Leonard H. Davis, City Atty., on brief), for appellant.

Howard I. Legum, Norfolk (Fine, Fine, Legum, Schwan & Fine, Norfolk, on brief), for appellee.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

CARRICO, Justice.

This is an appeal from a final order of the Industrial Commission denying the application of the city of Norfolk to cancel and terminate compensation awarded to Earl Allen Bennett.

Bennett, a police officer of the city, was, on the 7th day of November, 1962, assigned to motorcycle duty on the 3:00 p. m. to 11:00 p. m. shift. He requested and was granted permission, by his superior officer, to go off duty at 10:00 p. m. on that date. He was on his way to headquarters to 'CHECK OFF' WHEN HE WAS HAILED BY A FELLOW officer, with whom he spent some time discussing police matters. Noting that time had 'just slipped away,' he told the other officer 'I'm supposed to be off' and again started toward headquarters. His motorcycle was, at 10:54 p.m., involved in a collision with a fire engine owned by the city and operated by Clyde William Griffin, a city fireman. The engine was responding to an alarm of a fire at the Golden Triangle Hotel in Norfolk.

Bennett was seriously injured as a result of the collision. The city accepted the case as compensable and no November 29, 1962, entered into an agreement with Bennett providing for the payment of his full salary during his incapacity. The agreement was submitted to and approved by the Commission.

Bennett returned to duty on April 10, 1963, and his disability compensation was then terminated. However, approximately two months later, he again became incapacitated from his injuries and on July 2, 1963, entered into a supplemental agreement with the city providing for further compensation. The new agreement was approved by the Commission on July 10, 1963, and the award entered pursuant thereto was outstanding at the time the city filed the application which is the basis of this controversy.

In its application, the city prayed that the award of compensation to Bennett be cancelled and terminated and that he be directed to 'pay back to the City of Norfolk all sums that it has expended on his behalf.' This relief was sought, the application stated, because Bennett had instituted a civil action against Griffin, the operator of the fire vehicle, in the Court of Law and Chancery of the City of Norfolk, and in that action had filed an affidavit stating that he (Bennett) 'was not on duty at the time and place of the accident in controversy, nor did it arise out of or in the course of the plaintiff's employment.'

On September 17, 1963, a hearing was conducted on the city's application by Deputy Commissioner Harwood. In a written opinion, he ruled that there was insufficient evidence of fraud, mistake or duress to justify vacating the awards previously entered. At the city's request, the full Commission reviewed the case and, on March 26, 1964, affirmed the ruling of the Deputy Commissioner.

In the hearing before the Deputy Commissioner, Bennett testified as to his activities immediately preceding the accident. He stated that he executed the affidavit which was filed in his action against Griffin, that he had done so on the advice of counsel, and that he was told that there was 'a question of law * * * as to whether [he was] in the employ of the City' at the time of the accident.

The record shows that Louis B. Fine was counsel for Bennett in the action brought against Griffin. It also discloses that it was Fine who filed the affidavit in question. The affidavit was filed in response to a special plea filed by Griffin that Bennett's exclusive remedy was under the Workmen's Compensation Act and a plea of estoppel based upon Bennett's representations, in securing the awards from the Commission, that his injuries arose out of and in the course of his employment.

The Court of Law and Chancery of the City of Norfolk, on October 22, 1963, sustained Griffin's pleas and entered summary judgment in his favor. Bennett sought but was refused a writ of error to that judgment, as disclosed by our records, of which we take judicial notice.

The city's sole contention is that the Commission erred in holding that there was not sufficient evidence of fraud or mistake to justify vacating the awards previously entered.

Bennett contends that the Commission's decision is binding upon us by virtue of Code, § 65-94 which provides that an award of the Commission 'shall be conclusive and binding as to all questions of fact.'

There being no conflict in the evidence, the question of the sufficiency thereof is one of law. Scott v. Willis, 150 Va. 260, 262, 142 S.E. 400. The decision of the Commission is not, therefore, such as is conclusive and binding upon us and we must inquire to determine if the correct legal conclusion has been reached.

The power of the Commission to hear and determine an application alleging that a former award was obtained by fraud or mistake was recognized in Harris v. Diamond Const. Co., 184 Va. 711, 721, 36 S.E.2d 573. But where charges of fraud or mistake are involved before the Commission, the burden of proof and the character of evidence required are governed by the same rules that apply to a court of equity. Ashby v. Red Jacket Coal Corp., 185 Va. 202, 207, 38 S.E.2d 436.

'The charge of fraud is one easily made, and the burden is upon the party alleging it to establish its existence, not by doubtful and inconclusive evidence, but clearly and conclusively. Fraud cannot be presumed. It must be proved by clear and satisfactory evidence. It is true that fraud...