Ritman v. Wass

• Decision Date: 14 March 1955
• Docket Number: No. 18597,18597
• Citation: 125 Ind.App. 348,125 N.E.2d 33
• Parties: W. S. RITMAN, Receiver, Old First National Bank & Trust Company of Fort Wayne, and United States Fidelity and Guaranty Company, Appellants, v. Jessie WASS, Appellee.
• Court: Indiana Appellate Court

Page 33

125 N.E.2d 33

125 Ind.App. 348

W. S. RITMAN, Receiver, Old First National Bank & Trust

Company of Fort Wayne, and United States Fidelity and Guaranty Company, Appellants, v. Jessie WASS, Appellee.

No. 18597.

Appellate Court of Indiana, In Banc.

March 14, 1955.

Arthur W. Parry, Merl A. Barns, Parry & Barns, Fort Wayne, Harold Wallick, Indianapolis, for appellants.

Hoffman & Hoffman, Fort Wayne, for appellee.

KELLEY, Chief Judge.

On April 26, 1945, an award of compensation against appellants was granted appellee, as widow and sole dependent of her husband, Samuel Wass, who sustained fatal injuries under circumstances creating a legal liability in a third person tort-feasor. The award was in the amount of $5,500, payable in 300 weekly installments, beginning April 11, 1944, together with reimbursement for medical, hospital, and funeral expenses. No part of said award has been paid to appellee.

Appellee, as administratrix of her husband's estate, instituted an action for damages against the wrong-doer, which said action remains undisposed of in the DeKalb Circuit Court.

On May 16, 1953, appellee requested of appellants the payment of her said award, and appellants, on May 25, 1953, filed their written motion with the Industrial Board to set aside and declare null and void appellee's said award for the alleged reasons hereinafter referred to. Thereafter, appellee filed with the Board her motion to dismiss appellants' said motion on the ground that it was not filed within the statutory time and that the Board was without jurisdiction to hear and determine the same.

In pertinent substance, appellants' motion alleged: that appellee's attorneys, who also represented a number of other claimants against said third person tort-feasor for damages arising out of the same occurrence which caused the death of appellee's husband, had negotiated a 'package' settlement with said tort-feasor whereby an agreed settlement sum of $25,000, less $5,500 (being an amount equal to appellee's said compensation award), was to be paid to said attorneys, and said settlement was 'to be manipulated' by said attorneys in such manner that the name of appellee would be omitted from the settlement agreement so that it would ostensibly appear that the settlement was made for the net amounts due the other claimants represented by said attorneys, and the appellee would receive 'whether as a direct payment out of the total settlement amount, or by way of deduction from the settlement amounts, ostensibly payable to' the other claimants, the sum of $3,000; that thereafter appellee 'should' demand payment of her compensation award and thereafter, in consideration of said sum of $3,000, 'should' dismiss with prejudice her action against the tort-feasor, without execution of a formal release, since the statutory limitation had expired; that said 'agreement' between appellee's attorneys and the said tort-feasor 'constitutes' a valid and binding 'election' by appellee to 'accept such settlement' of her action for wrongful death of her husband and constitutes a 'complete bar' to her acceptance of benefits under the award; and that the 'indirect method' by which the settlement amount was to be paid appellee and her release 'effected' is an 'attempted fraud' upon appellants' legal rights and upon the Industrial Board.

Said motions were first submitted to a single member of the Board who also heard all the evidence given by appellants and appellee. From the single member's dismissal of appellants' motion for want of jurisdiction, the matter was presented for review by the full Board. The latter, on May 14, 1954, having reviewed all the evidence in said cause, found the granting of appellee's award on April 26, 1945, the filing of appellants' motion on May 25, 1953, the filing of appellee's motion to dismiss on September 29, 1953, and that the Board 'is without jurisdiction in the premises.' It then ordered that appellants' motion 'should be and the same is hereby denied.'

Appellants bring up all the evidence and assign that said award of the full Board on May 14, 1954, is contrary to law and, in support thereof, urge that (1) the Board erred in failing to find that appellee had not received or requested payment of her award prior to her said 'election' to accept 'a settlement' of $3,000 from the third party tort-feasor; (2) the Board erred in finding it was without jurisdiction; and (3) it erred in denying appellants' motion to set aside, cancel, and annul the original award.

The appellants have briefed the case upon the proposition that the Board declined jurisdiction 'on the theory that appellants' motion was barred by the time limitation' provided by Sec. 45, ch. 172, Acts 1929, as amended by Sec. 12, ch. 162, Acts 1947, being Sec. 40-1410, Burns' 1952 Replacement, and assert that this appeal involves no question of the merits of the motion 'but merely a question of jurisdiction of the Board to entertain such motion.' Appellee, however, contends that the Board's declination of jurisdiction was proper; not only because appellants' motion was not filed in time but, also, because appellants' motion and the evidence adduced make no case for the relief prayed for by appellants.

Our jurisdiction of this appeal having attached for one asserted purpose, will be retained for all purposes, Benson v. Christian, 1891, 129 Ind. 535, 29 N.E. 26, and cases cited, and, in the absence of any reversible error prejudicial to appellants, if the conclusion reached by the Board was correct, it will be affirmed, without regard to the grounds upon which its determination was based. Blanchard v. Wilbur, 1899, 153 Ind. 387, 55 N.E. 99.

We, therefore, advert to the evidence bearing upon the material allegations of appellants' said motion. That part of the evidence pertinent to the issues involved, may be summarized as follows:

Arthur W. Parry, one of the appellants' attorneys, testified, in substance, that he had no conferences with appellee and that he had no information 'about the matter at all' except what was told to him by Mr. Hoffman, Sr., and Mr. Hoffman, Jr., attorneys for appellee. He said that the Hoffmans had told him that they were negotiating with a Mr. Hunt, who represented the tort-feasor, for settlement of the damage claims of their clients, one of whom was the appellee, on a basis of $25,000, which included $8,500 for benefit of appellee; that Mr. Hunt had accepted the figure of $25,000, but would pay only $19,500 and appellee should accept her compensation award of $5,500; that the Hoffmans told him they had decided to settle on the basis mentioned and appellee's compensation would be claimed; and, as the settlement would be between Hoffmans' other clients and the tort-feasor, appellee's name would not appear in the settlement; that if the total settlement was paid to the Hoffmans for their other clients, no release from appellee would be needed because the limitations statute had expired and she could dismiss her action with prejudice. The witness further said that Mr. Hoffman 'took the position' that if the...