Tokash v. Workmen's Compensation Com'n

• Decision Date: 07 May 1940
• Docket Number: 36898
• Citation: 139 S.W.2d 978,346 Mo. 100
• Parties: Frank Tokash, Appellant, v. Missouri Workmen's Compensation Commission, Liberty Mutual Insurance Company, and General Baking Company
• Court: Missouri Supreme Court

139 S.W.2d 978

346 Mo. 100

Frank Tokash, Appellant, v. Missouri Workmen's Compensation Commission, Liberty Mutual Insurance Company, and General Baking Company

No. 36898

Supreme Court of Missouri

May 7, 1940

Motion for Rehearing Overruled May 7, 1940.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene J Sartorius, Judge. Opinion filed at September Term, 1939 March 6, 1940; motion for rehearing filed; motion overruled at May Term, 1940, May 7, 1940.

Reversed and remanded (with directions).

John W. Barry and Wm. R. Schneider for appellant.

(1) The equitable remedy to set aside a judgment for fraud can be invoked only by an independent equitable action such as plaintiff has brought in the case at bar. Jeude v Simms, 258 Mo. 26, 166 S.W. 1048; Schneider v. Schneider, 273 S.W. 1081; Force v. Margulius, 33 S.W.2d 1023. (a) Equity may grant relief against enforcement of judgments at law, obtained or entered though fraud, accident or mistake, "whether committed by the court, the clerk, or by one of the parties or their attorneys." Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565. (b) Want of jurisdiction to enter a judgment "may be assailed by direct attack." Kristanik v. Chevrolet Motor Co., 70 S.W.2d 890. (c) A judgment based upon a stipulation or an agreement of the parties, which stipulation was not a part of the record brought up from the Workmen's Compensation Commission, is a nullity, and is an attempt to confer jurisdiction by consent, which cannot be legally done. R. S. 1929, sec. 3342; Department of Ind. Rel. v. Travelers Ins. Co., 170 S.E. 883. (2) A compensation award or claim cannot be validly settled by agreement between the parties on stipulation, nor by judgment entered in the circuit court on such stipulation by the clerk of the court, or on order of the judge. It can only be settled through hearing and approval of the Missouri Workmen's Compensation Commission. Sec. 3333, R. S. 1929; Harder v. Thrift Const. Co., 53 S.W.2d 34; Detinne v. Wellsville Fire Brick Co., 70 S.W.2d 369; Shout v. Gunite Concrete Const. Co., 41 S.W.2d 629; O'Malley v. Mack Inter. M. T. Corp., 225 Mo.App. 1, 31 S.W.2d 554; Ind. Comm. of Colo. v. London G. & A. Co., 66 Colo. 575, 185 P. 344; Workmen's Compensation Bd. v. Abbott, 278 S.W. 533; Mass. Bonding Co. v. Ind. Comm., 176 Cal. 488, 168 P. 1050; Jenkins v. Hogan & Son, 177 A.D. 36, 163 N.Y.S. 707. (3) There is a presumption in favor of the propriety and legality of the awards of the Workmen's Compensation Commission. In the absence of fraud such awards are not subject to collateral attack nor to nullification by opinion of counsel that such award was made due to a mistake of law on the part of the commission. Waterman v. Chicago Bridge & Iron Works, 41 S.W.2d 578; 22 C. J., 130; Wright v. Penrod Jurden & Clark Co., 88 S.W.2d 413; 71 C. J., 1200; Ashland Iron & Mining Co. v. McDaniel, 202 Ky. 19, 258 S.W. 943.

John F. Evans for respondents.

(1) Plaintiff's right of recovery is limited to the allegations of the petition and is bottomed solely on alleged fraud in procurement of the judgment. The issues on appeal cannot be extended beyond the theory of recovery contained in the pleadings. Cordia v. Matthes, 338 Mo. 308, 90 S.W.2d 101; Farasy v. Hindert, 82 S.W.2d 573; Davis v. Dawson, 273 Mo. 499, 201 S.W. 524; South Mo. Lbr. Co. v. Carroll, 255 Mo. 357, 164 S.W. 599; Newham v. Kenton, 79 Mo. 382. (2) The record in this case fails to reveal a scintilla of evidence that the judgment was procured by fraud, and there is a total lack of that clear, strong and convincing evidence necessary to authorize a court to void a judgment. McFaddin v. Simms, 309 Mo. 312, 273 S.W. 1050; Johnson v. Belt, 329 Mo. 515, 46 S.W.2d 153; Johnson v. Realty Co., 167 Mo. 325, 66 S.W. 933. (3) The circuit court had jurisdiction to enter a judgment reversing an award of the Workmen's Compensation Commission, and (absent fraud in procurement) such judgment cannot be attacked after term time either by motion or collateral suit. If error or irregularity exists in the exercise of jurisdiction the remedy is by appeal from the erroneous or irregular judgment. Kristanik v. Chevrolet Motor Co., 325 Mo. 60, 70 S.W.2d 890; Platies v. Bakery Co., 79 S.W.2d 504; Robinson v. Construction Co., 72 S.W.2d 127. (4) Plaintiff voluntarily executed the stipulation which he asserts, but wholly fails to prove, was obtained by fraud. He must have known that the court would act on the compensation appeal in conformity with the stipulation, but did not appeal from the judgment. He subsequently accepted a substantial settlement of a common-law claim growing out of the same accidental injuries on which his compensation claim was based, and then waited two years before bringing this suit. His actions estop him from attacking the validity of the judgment. Sullivan v. Holbrook, 211 Mo. 99, 109 S.W. 668; Holcomb v. Mays, 202 Mo.App. 167, 215 S.W. 711.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This is an action in equity to set aside a judgment of the circuit court of St. Louis, reversing an award of the Workmen's Compensation Commission in favor of plaintiff, and to set aside an order (made by direction of the circuit court) of the commission denying compensation to plaintiff. The trial court dismissed plaintiff's petition and he appealed.

September 25, 1934, plaintiff, while doing some painting in St. Louis, for defendant, General Baking Company, fell and was injured. In due time he filed claim for compensation, and on June 17, 1935, the commission made a final award by which he was awarded compensation of $ 20 per week for not more than 400 weeks, and $ 817.60 for medical aid to April 21, 1935. Defendants, General Baking Company and Liberty Mutual Insurance Company, as employer and insurer, appealed from the final award of the commission.

The employer and insurer, in the compensation case, contended that claimant, plaintiff in the present cause, had no valid compensation case; that if he had any case at all, it was a common-law action for damages against his employer. The employer carried with the defendant insurance company, a policy covering liability under the compensation law and also a policy covering common-law liability. After the compensation case reached the circuit court, settlement was discussed, and an agreement reached by which the insurance company paid to plaintiff the sum of $ 3800, and plaintiff, on October 24, 1935, executed what is called a "release and settlement of claim."

After the release, there was filed in the circuit court the following stipulation:

"It is hereby stipulated and agreed, by and between the parties hereto (claimant and his attorney, employer and insurer and their attorneys) that the court may enter an order and judgment herein reversing the award of the Missouri Workmen's Compensation Commission with instructions to said commission to enter a new award of no compensation against Frank Tokash, employee, and in favor of General Baking Company, employer, and Liberty Mutual Insurance Company, insurer."

What is termed the judgment roll recites: "Now at this day come the parties hereto by their respective attorneys and file and present to the court a stipulation upon consideration and in accordance of which, it is ordered by the court that the findings and award of the Missouri Workmen's Compensation Commission of the final award after hearing, awarding plaintiff, employee for temporary, total disability, the sum of $ 20 per week, for a period of not more than 400 weeks during the continuation of said disability, and in addition thereto, the sum of $ 817 for medical aid to April 21, 1935, be set aside and vacated. It is further ordered by the court, in further pursuance to said stipulation, that this cause be remanded to the Missouri Workmen's Compensation Commission with directions to enter a new award of no compensation against the plaintiff, employee, in favor of the defendants, employer and insurer, and that the costs hereto be paid by plaintiff for which let execution issue."

What may be termed the stipulation judgment was entered October 25, 1935, and pursuant to this judgment, the commission, on November 18, 1935, entered an order denying compensation. The present case was filed September 16, 1937.

Plaintiff alleges, among other things, that the true facts in the compensation case were concealed from the circuit court; that the judgment was brought about by the connivance of plaintiff's then counsel, and counsel for the insurance company; that the "judgment entered in accordance with the . . . stipulation of agreement and settlement constitutes a fraud, not only upon the plaintiff, but also upon the court in which it was entered and upon the Missouri Workmen's Compensation Commission." The insurance company and the baking company answered separately, by a general denial, estoppel and laches. The Attorney General filed a general denial for the Workmen's Compensation Commission, but took no part in the trial.

Plaintiff not able to appear in court, testified by deposition, that his compensation case was in the hands of his then counsel. "It was in his hands, and I had all the confidence in my attorney; I left it up to him. . . . He mailed those papers (release and stipulation, as we understand) to me, but I didn't know what to do. I was discouraged. I didn't like the idea. I knew I wasn't treated well, after a whole year waiting for a little help for myself and family, dependent on friends for help, compensation board give me an award, but I wasn't receiving anything. Then after I received that notice from Mr. Springmeier (plaintiff's attorney in the compensation case) to settle for $ 3,800 I was absolutely discouraged; didn't like it at all; I didn't know what to do;...