Harris v. Diamond Const. Co

• Decision Date: 14 January 1946
• Citation: 184 Va. 711,36 S.E.2d 573
• Parties: HARRIS et al. v. DIAMOND CONST. CO. et al.
• Court: Virginia Supreme Court

36 S.E.2d 573

184 Va. 711

HARRIS et al.

v.DIAMOND CONST. CO. et al.

Supreme Court of Appeals of Virginia.

Jan. 14, 1946.

Appeal from Industrial Commission.

Proceedings under the Workmen's Compensation Act by Lee Harris and Mildred Harris, claimants, for compensation for the death of their son, Sam F. Harris, opposed by Diamond Construction Company, employer, and another. From the award of the Industrial Commission, claimants appeal.

Affirmed.

Before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Simeon M. Atkinson, of Mansfield, for appellants.

John G. May, Jr. and Robert Lewis Young, both of Richmond, for appellees.

EGGLESTON, Justice.

On February 14, 1945, Sam F. Harris, a colored youth, eighteen years old, while employed as a helper at West Point, Virginia, by the Diamond Construction Company, was killed. The decedent's parents, Lee Harris and Mildred Harris, executed a writing employing Douglas S. Mitchell, a local attorney, as their counsel to prosecute "their claim as dependents" against the decedent's employer. A claim for compensation was promptly filed with the Industrial Commission, and in due time the matter came on to be heard before Deputy Commissioner Robinson. According to the record neither claimant appeared at the hearing, but only Mr. Mitchell, their attorney, and the adjuster for the insurance carrier were present. Since the ultimate determination of the matter turns on just what occurred at this hearing, the proceedings, as shown by the reporter's transcript, are copied in the margin.¹

On March 26, 1945, Commissioner Deans, for the Commission, rendered an opinion finding the facts in accordance with the statements of counsel for the respective parties made at the hearing. On the same day an award was entered directing the payment of the sum of $700 to the claimants, subject to the deduction of the attorney's fee of $100. In accordance with the usual practice of the Commission, notice of this award was mailed to the claimants personally, as well as to their counsel.

On May 14, 1945, the parents of the deceased, filed a petition before the Commission, setting forth that the decedent had been killed at the time and under the circumstances stated; that the petitioners had employed Mr. Mitchell as their attorney to represent them in the prosecution of their claim for compensation against the Diamond Construction Company; that during the investigation which their attorney had made the petitioners told him that the decedent "was their main financial support, " that he was the "sole support of his infant sister, sixteen years old, and her illegitimate child, " and that he "was also helping to support another infant sister." It was further alleged that upon being informed of the amount of the award the petitioners "immediately" advised their attorney that "such a settlement" was not agreeable to and would not be accepted by them.

The prayer of the petition was that the award of March 26, 1945, which, it was alleged, was based upon an unauthorized compromise of petitioners' claim against their son's employer, "be set aside, " and that petitioners "be given a hearing by the Industrial Commission of Virginia, after proper notice, " in order that they might "produce evidence" in support of the allegations made in the petition.

In the meantime, Mr. Mitchell had withdrawn as counsel in the case and the petition just referred to was presented to the Commission by claimants' present counsel.

The petition was promptly heard by the full Commission which, on May 25, 1945, through Commissioner Nickels, its Chairman, rendered an opinion declining to reopen or review the matter and affirming its previous award. The Commission treated the petition as "an application for re-view" under section 60 of the Workmen's Compensation Act, Michie's Code of 1942, § 1887(60). Since, it said, such application had not been filed within the period of seven days from the date of the award of March 26, 1945, as provided in that section, it came too late.

Moreover, the opinion held that on the merits the record failed to show that the petitioners were entitled to have the award vacated. It pointed out that the award was not based upon an unauthorized compromise, but upon "an agreed statement of facts" which the petitioners' counsel had the right to make, and had made, after a careful investigation of the matter.

From an award based on this opinion the present appeal has been taken.

The first question presented to us is whether the Industrial Commission had jurisdiction to hear the petition praying for a vacation of the award of March 26, 1945.

The appellees insist that since the petition was not filed within seven days from the date of the award of March 26, that award became final and the Commission had no authority under section 60 of the Act, Michie's Code of 1942, § 1887 (60) to review the matter. If the petition be treated as "an application for review" under section 60 of the Act, then that position is correct. Merrimac Anthracite Coal Corp. v. Showalter, 158 Va. 227, 229, 163 S.E. 73. But, in our opinion, the petition is not such an application. It is, in effect, an application to set aside and vacate an award which the petitioners claim was void because it was based on an unauthorized compromise of their claim.

The Virginia Workmen's Compensation Act contains no express provision authorizing the Commission to entertain such a petition. Has it the implied authority to do so?

Some courts take the view that the judicial functions of tribunals of this character are limited by the express terms of the act, and that they have no implied powers beyond those expressly granted them by the legislature. Consequently, these courts hold that an award procured through fraud or mistake can not be vacated in a proceeding before the Commission but that the parties must resort to a court of equity in an independent suit for relief. Typical of such cases are Luyk v. Hertel, 242 Mich. 445, 219 N.W. 721, 722; Chittenden v. Jarvis, 68 S.D. 5, 297 N.W. 787, 789, citing authorities pro and contra.

On the other hand, the highest court of Indiana, whose opinions in workmen's compensation cases are "peculiarly persuasive" with us, ² holds that the Industrial Board has the implied power, upon an application seasonably made, to vacate an award procured through fraud or mistake even after the lapse of the period for an application for review.

In the recent case of Homan v. Belleville Lumber & Supply Co., 104 Ind.App. 96, 8 N.E.2d 127, the widow and dependents of an employee who was killed in a railroad collision, while driving an automobile for his employer, were awarded compensation. After the award had become final, but while compensation was being paid, the insurance carrier discovered that the widow, as administratrix of the decedent's estate, with the approval of the probate court, had made a compromise settlement with the railroad company in which she had been paid the sum of $500. The insurance carrier promptly filed with the board an application to "correct, vacate and set aside" the award for the reason that it had been procured through "fraud, duress, mistake and gross irregularity." Over the objection of the dependents that it had no jurisdiction to do so, the board reopened the matter and vacated the award previously made on the ground that it "was based upon a mistake of fact and gross irregularity." An award was then entered denying compensation to the dependents because of the settlement which the administratrix had made with the railroad company. From this latter award the dependents appealed.

The highest court of Indiana upheld the jurisdiction of the Industrial Board to set aside the award, under the circumstances stated, but remanded the case to the board for a full hearing and a determination as to whether the compromise settlement of the administratrix with the railroad company had been canceled, as the administratrix claimed, and whether, as the result 2 "The holding of the Indiana court is peculiarly persuasive with us because the Virginia act is based upon that of In diana." Basham v. Lowe, Inc., 176 Va. 485, 494, 11 S.E.2d 638, 642, 131 A.L. R. 761, and cases there cited.of such cancellation, the dependents were entitled to compensation.

In sustaining the jurisdiction of the board to vacate the award, the court pointed out (104 Ind.App. 96, 8 N.E.2d at page 130) that:

"* * * the establishment of such administrative agencies as the Industrial Board was for the purpose of taking away from the courts and giving to an administrative agency the power to adjust disputes of the character here involved. * * * Great dissatisfaction had arisen in the manner in which this class of cases was handled by the courts and the people sought to establish a more expeditious and surer method by which those who were injured in industry could receive something for such injury. * * *

"Throughout the entire act it is obvious that the people through their law making agency intended that the Industrial Board, which they created, should have full, complete and absolute administration of such law. (Emphasis by the court.) That resort was not to be had to the courts until the administrative process had been completely exhausted. * * *"

Continuing, it is said, 104 Ind.App. 96, 8 N.E.2d at page 132:

"* * * our inevitable conclusion must be that one of the ends sought was the elimination of costly processes of the law prior to its enactment. If the Industrial Board here did not have the power to decide its jurisdiction and litigants must be forced into courts there would be no saving of time or expense and no different condition would obtain than did prior to the enactment of this law. We believe it was the intention of the legislature, and if not the specific intent at least the general one, as gathered from the act as a whole, that matters of this kind are incidental to the administration of this act and should be...