Grasselli Chemical Company v. Simon

• Decision Date: 18 April 1929
• Docket Number: 25,234
• Citation: Grasselli Chemical Company v. Simon, 201 Ind. 41, 166 N.E. 2 (Ind. 1929)
• Parties: Grasselli Chemical Company v. Simon et al
• Court: Indiana Supreme Court

166 N.E. 2

201 Ind. 41

Grasselli Chemical Company v. Simon et al

No. 25,234

Supreme Court of Indiana

April 18, 1929

1. MASTER AND SERVANT---Workmen's Compensation---Jurisdiction of Claim---Must be Questioned Before Industrial Board---Enjoining Enforcement.---An employer who contests a claim for compensation under the Workmen's Compensation Law by denying liability cannot enjoin the enforcement of the award made by the Industrial Board on the theory that it did not have jurisdiction because there was no proof of the inability of claimant and employer to agree as to the compensation which should be paid, as the question must be raised before the Industrial Board. p. 51.

2. MASTER AND SERVANT---Workmen's Compensation---Application for Judgment on Award---Questions Court may Review.---On application to a circuit or superior court under 62 of the Workmen's Com- pensation Law (9507 Burns 1926) for judgment on an award of compensation, the court has no jurisdiction to review the decision of the Industrial Board, construe the Workmen's Compensation statute or determine whether the decision was correct. p. 52.

3. MASTER AND SERVANT---Workmen's Compensation---Judgment on Award---Valid without Summons or Notice.---The section of the Workmen's Compensation Act providing for entry of judgment on an award of compensation without summons or other notice (9507 Burns 1926) is valid, as employers failing to exempt themselves from the act are presumed to consent to it under 2 and 3 thereof (9447, 9448 Burns 1926), and the section providing for judgment on the award is merely a method of enforcing collection of the award. p. 52.

4. JURY---Workmen's Compensation Act---Employer Accepting Waives Jury Trial.---Byelecting to come under the Workmen's Compensation Act, an employer accepts the procedure provided by that act for the adjustment of claims for compensation, and waives the right of trial by jury. p 52.

5. CONSTITUTIONAL LAW---Workmen's Compensation Act---Employer Contesting Claim---Not Deprived of Property without Due Process of Law---Nor Equal Protection of Law.---An employer who appeared before the Industrial Board and contested a claim against it for compensation, but did not question the board's jurisdiction, proceeded with a hearing before the board and obtained a review by the Appellate Court, was not deprived of its property without due process of law or deprived of the equal protection of the law within the Fourteenth Amendment to the federal Constitution or 21 and 23, Art. 1, state Constitution. p. 52.

From Lake Circuit Court; E. Miles Norton, Judge.

Suit by the Grasselli Chemical Company against Mary Simon and others to enjoin them from enforcing a judgment on an award of compensation by the Industrial Board. From a denial of the injunction, the plaintiff appealed.

Affirmed.

Ibach Gavit, Stinson & Gavit and M. H. Miller, for appellant.

More N Oppman and George E. Hershman, for appellees.

OPINION

Gemmill, J.

This is an action brought by the appellant in the Lake Circuit Court seeking to enjoin the appellees, Mary Simon, Benjamin H. Strong, as sheriff of Lake County, Indiana, and John Killigrew, as clerk of the Lake Circuit Court, from enforcing or attempting to enforce an award of the Industrial Board and the judgment of the Lake Circuit Court rendered upon an award in favor of appellee Mary Simon, and against the appellant, upon the theory that the award and judgment were both rendered without jurisdiction on the part of the Industrial Board and the Lake Circuit Court, and that, to enforce the award and the judgment against the appellant would deprive it of its property without due process of law. The action also was for the purpose of vacating the judgment and of quieting title to the real estate of the appellant in Lake County, Indiana, as against the supposed lien of the judgment rendered upon the award.

The appellees filed a demurrer to the complaint for insufficient facts for the reasons that: (1) The action of the Industrial Board and the Appellate Court was conclusive upon the appellant; (2) that the award of the Industrial Board having been affirmed by the Appellate Court, said decision was final and conclusive upon appellant; (3) that the action was a collateral attack upon the award of the Industrial Board; (4) the facts set out in the complaint showed that the Industrial Board had jurisdiction and that the circuit court had jurisdiction to render the award and judgment; (5) the appellant, having elected to come within the provisions of the Workmen's Compensation Act, had waived its constitutional rights in regard to the act.

The cause was submitted to the court upon the appellees' demurrer and the demurrer was sustained, to which ruling the appellant duly excepted and, refusing to plead further, judgment was rendered against it.

On appeal, the appellant assigns errors as follows: (1) The court erred in sustaining appellees' demurrer to the appellant's complaint and petition; (2) the court erred in entering judgment against appellant on June 8, 1926.

The material allegations of the complaint are as follows: The appellant, Grasselli Chemical Company, prior to February 24, 1923, had elected to come within the provisions of the Workmen's Compensation Act of Indiana. On that date, one Joseph Simon, the husband of appellee Mary Simon, and with whom she was living, was an employee of appellant. On said date, Simon came to death by drowning in the Calumet River, leaving appellee Mary Simon as his sole dependent. Appellant was notified of decedent's death, but no settlement or compensation was paid or offered to the widow, Mary Simon, said appellant at all times denying liability. During the month of January, 1925, the widow, appellee Mary Simon, filed her claim with the Industrial Board asking for an award of compensation against the appellant. Appellant appeared to this petition and contested its liability before the Industrial Board, and such proceedings were had that the full Industrial Board, on May 23, 1925, made a finding that said Joseph Simon came to his death by an accident arising out of and in the course of his employment and awarded compensation to the widow, Mary Simon. The appellant, in appearing to said petition before the Industrial Board and contesting its liability, filed no special answer of any nature or description and did not set up any defense of confession and avoidance.

From the award so made by the Industrial Board, appellant prosecuted an appeal to the Appellate Court of Indiana and thereafter, on December 17, 1925, the Appellate Court by an opinion duly rendered, affirmed said award. Grasselli Chemical Co. v. Simon (1925), 84 Ind.App. 327, 150 N.E. 617.

Thereafter, appellant refused to pay any part or portion of the award so made by the Industrial Board and affirmed by the Appellate Court of Indiana, and thereafter, on June 8, 1926, in accordance with § 62 of the Indiana Workmen's Compensation Act, § 9507 Burns 1926, appellee Mary Simon filed in the circuit court of Lake County, Indiana, a certified copy of the judgment or award made by the full Industrial Board of the State of Indiana, and also a certified copy of the opinion and judgment of the Appellate Court affirming the judgment or award by the Industrial Board, and the said Lake Circuit Court, in accordance with the terms and provisions of the statute hereinabove referred to, on said date, rendered judgment upon said award that the appellant pay the sum of $ 2,357.20 and the further sum of $ 13.20 per week, payable weekly, for 129 weeks, together with all costs laid out and expended.

That said award and said judgment are wholly void and deprive the appellant of property without due process of law for the reason that the said Workmen's Compensation Act provides in § 58 that if the employer and injured employee or his dependents fail to reach an agreement in regard to the compensation payable under this act, either party may make an application to the Industrial Board for the determination of the matters in dispute; that the aforesaid Industrial Board had no jurisdiction to award compensation to the said Mary Simon. In the proceedings had before said Industrial Board, it was necessary for said Mary Simon to allege and prove that the said Grasselli Chemical Company and said Mary Simon as dependent had failed to reach an agreement in regard to the compensation payable; that the said Mary Simon had in fact alleged in her claim for compensation that the parties disagreed as to the liability and amount of the compensation, but the Grasselli Chemical Company alleges that, prior to the date of the filing of said claim for compensation, said parties had not disagreed as to the compensation payable and said claim for compensation was filed by Mary Simon with the Industrial Board before any steps had been taken by Mary Simon as dependent of said Joseph Simon to agree with the Grasselli Chemical Company as to the liability and the amount of compensation payable, and that in the trial of said claim before the Industrial Board, said Mary Simon introduced no evidence whatever to sustain said allegation in her claim or to prove that, before the filing of said claim, the parties had disagreed as to the compensation payable.

That said board was without jurisdiction to hear and determine the claim of said Mary Simon and was without jurisdiction to enter an award in said matter as against the Grasselli Chemical Company. That by reason thereof, the Grasselli Chemical Company has been and is being deprived of its property without due process of law and is being deprived of equal application of the law, contrary to the Fourteenth Amendment of the United States Constitution, and contrary to §§ 21 and 23, Art. 1 of the...