Homan v. Belleville Lumber & Supply Co.
| Decision Date | 04 May 1937 |
| Docket Number | 15783. |
| Citation | 8 N.E.2d 127,104 Ind.App. 96 |
| Court | Indiana Appellate Court |
| Parties | HOMAN et al. v. BELLEVILLE LUMBER & SUPPLY CO. et al. |
Appeal from Industrial Board.
Jones Obenchain & Butler, of South Bend, for appellants.
Barrett Barrett & McNagny and Leigh L. Hunt, all of Fort Wayne Henry L. Humrichouser, of South Bend, and Mentor Kraus and Jos. A. Bruggeman, both of Fort Wayne, for appellees.
Paul H. Homan was, on May 28, 1934, in the employ of the Belleville Lumber & Supply Company, earning a weekly wage in excess of $30 and on that day an automobile in which he was driving in the course of his employment, came into collision with a train, operated by the New York Central Railroad Company, and he sustained an injury as a result of an accident arising out of and in the course of his employment. The next day Homan died as a result of the accident leaving surviving him a widow and two minor daughters, the appellants here. On July 30, 1934, the appellants filed a verified application for an adjustment of their claim for compensation. A hearing was had on this application before a single member of the board on December 5, 1934. On December 22, 1934, before an award was made this application was dismissed by the applicants.
About the 1st day of December, 1934, Mary Virginia Homan, the widow, was appointed administratrix of the estate of Paul Homan, deceased, and on the 26th day of December she filed a petition in the St. Joseph superior court, which court has probate jurisdiction in that county, alleging that her husband had been killed by reason of his having been struck by a train operated by the New York Central Railroad Company while he was driving an automobile across the tracks of said railroad company; that since that time negotiations had been carried on between her attorneys and attorneys for the railroad company; and that such negotiations had resulted in an offer on the part of the Railroad Company to pay to her, as administratrix, the sum of $500 "in full compromise settlement of all claims and demands against said New York Central Railroad Company." She further alleged that she, as administratrix, believed this settlement to be the highest and best possible that could be made with said railroad company and asked the court for an order authorizing her, as such administratrix, to enter into such agreement. On the same day the St. Joseph superior court, No. 1, entered an order to the effect that the court had been "duly advised in the premises" and finds that the offer of the railroad company to said administratrix "in full and final compromise, compound and settlement for all liability of said railroad company should be accepted, and that said administratrix should be authorized to enter into such release as shall fully and sufficiently release as shall company from further liability." And upon such finding ordered, adjudged, and decreed that "Mary Virginia Homan, as administratrix of the Estate of Paul Homan, deceased, be, and she is authorized and empowered to accept from the New York Central Railroad Company the sum of Five Hundred ($500.00) Dollars in full compound, compromise and settlement of all claims and liabilities of said railroad company growing out of the death of said Paul Homan," and further authorized her to execute a complete and final release and agreement to said railroad company "releasing it from all further claims and demands of every nature and kind." A day or so later the railroad company paid to her, in consideration of her release, as administratrix, the sum of $500 whereby she released and discharged the said railroad company "from all claims, demands, causes of action, and from all liability for damages of whatsoever kind, nature or description now existing or which may hereafter arise from or out of injuries received * * *" by her husband on the 28th day of May, 1934, and his death. This release was signed in the presence of a claim agent for the railroad company and one of her attorneys, a member of the firm of attorneys handling her business on December 31, 1934.
On January 11, 1935, the appellants filed with the Industrial Board their second verified application alleging that they were the dependents of Paul H. Homan who died as an approximate result of personal injuries received by him by reason of an accident arising out of and in the course of his employment with the Belleville Lumber & Supply Company and made the insurance carrier, the Lumbermen's Mutual Casualty Company, a party defendant, stating that a controversy had arisen with respect to the compensation to be paid therefor and that the defendant denies liability for compensation, stating further in said application that the decedent was engaged in driving an automobile on the company's business in the performance of his duty and met with an accident which was caused by the automobile in which he was riding being struck by a train belonging to the railroad company. The application was signed and verified by Mary Virginia Homan and by her attorneys. There was a hearing on this application before a single member of the Board which resulted in an award in favor of the appellants which award was reviewed by the full board and its award was to the effect that appellants were entitled to compensation in equal shares totaling the sum of $16.50 per week beginning on May 29, 1934 during the period of their dependency but not exceeding 300 weeks and that the compensation of the two minor dependents be paid to their mother for their maintenance and support without her being appointed guardian or trustee and that the employer pay the reasonable medical, etc., expenses incident to the injury and $100 burial expense. Payments were made under this order to and including September 30, 1935, by the Lumbermen's Mutual Casualty Company, the insurance carrier.
On October 21, 1935, an attorney who had represented the defendant employer and insurance carrier, before the Industrial Board, discovered that Mary Virginia Homan as administratrix had given her release as such to the railroad company. He immediately called one of the attorneys representing her and told him that the compensation must necessarily cease under the award, and on November 2, 1935, the appellee, Belleville Lumber & Supply Company filed an application for review on account of mistake and asked that the award of June 19, 1935 be "vacated, set aside and held at naught because of mistaken fact." On December 10, 1935, the appellants through their attorneys filed what they denominated a motion to dismiss the appellee lumber company's petition for review on account of mistake for the reason, as they alleged, that the Industrial Board had "no jurisdiction, power, or authority to vacate said award and held at naught because of mistaken fact" and on January 30, 1936, the appellee Lumbermen's Mutual Casualty Company filed an application with the Board to "correct, vacate and set aside an order and award" of the single member and of the full board "for the reason that said awards and each of them were and are the result of fraud, duress, mistake and gross irregularity" and asked that the board "correct, vacate and set aside the said awards, and for all other and further relief to which it may be entitled in the premises." At a hearing had by a single member of the board an order was made that the questions raised by the appellees' application should be referred to the full board and on February 15, 1936, the appellants filed a motion to dismiss the applications of the appellee Lumbermen's Mutual Casualty Company theretofore filed.
There were other so-called pleadings filed by both parties prior to the hearing before the full board but it would serve no useful purpose to mention them. On April 1, 1936, a hearing was held before the full board at which time there was evidence introduced of the petition filed by the administratrix of Paul Homan's estate with the court having probate jurisdiction in St. Joseph county asking that she be permitted to accept from the railroad company the $500 heretofore mentioned and a certified copy of the order issued by the court directing her to do this, and further that she had, as such administratrix, accepted said $500 and executed a release to the railroad company and further that the appellees had no knowledge of such action until October 21, 1935.
Following this the appellants tendered evidence to the effect that following the discovery by the appellees of the acceptance of $500 by Mrs. Homan as administratrix that she, as such administratrix, petitioned the court having probate jurisdiction, which had issued the order heretofore mentioned to be allowed to tender back to the railroad company the money together with interest thereon and that such court gave her the authority to tender back and she did tender back to the railroad company the $500 together with interest accrued thereon to that time and that the railroad company returned to her the release issued by her, as such administratrix, marked "cancelled." All of this offered evidence was rejected and the board refused to hear any of it and entered an order finding for the appellees and each of them and set out in detail the facts as heretofore set out in this opinion with the exception of such facts as were offered by the appellants and refused to be heard by the board and further found that the appellants' right to compensation was barred by the settlement made by said administratrix and that none of the appellants or any of them were entitled to compensation by reason of the death of the decedent and that the awards made by the single member and by the full board were based upon mistake of fact and gross irregularity and...
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