Summary
In Indus. Comm. v. Broskey (1934), 128 Ohio St. 372, 191 N.E. 456, the Supreme Court accepted an estoppel argument against an employee who settled with an employer for injuries and then, without restoring such benefits, sought compensation under the State Insurance Fund. Estoppel has also been applied in other decisions.
Summary of this case from Halley v. Grant Trucking, Inc.Opinion
No. 24607
Decided May 31, 1934.
Workmen's compensation — Additional award denied claimant — Compensation awarded, claimant sued employer, settled suit and executed release — Settlement under mistake of law avails claimant nothing, when.
1. Additional workmen's compensation will not be awarded a claimant who after receiving an award, sued his contributing employer for damages for the identical personal injuries for which he claims further compensation, and by way of settlement of that suit received a substantial sum which he acknowledged to be satisfactory and in consideration of which he executed to his employer a complete release against all past, present and future claims.
2. The fact that such settlement was made under a mistake of law avails such claimant nothing, especially when the mistake of law, if any, was induced by such claimant.
ERROR to the Court of Appeals of Jefferson county.
This case was submitted to the Court of Common Pleas, a jury having been waived, upon the following agreed statement of fact:
It is agreed by and between counsel for the claimant and counsel for the state insurance fund that on the 22nd day of September, 1929, the claimant was employed by the Union Motor Transit, Inc., 608 Sinclair Building, Steubenville, Ohio, as a bus driver; that claimant started his employment with the Union Motor Transit, Inc., on September 22, 1929; that on that date he rode with one of the other drivers between Steubenville and Canton, Ohio; that on September 23, 24, 25 and 26 the claimant drove a bus of the company between Canton, Ohio, and Pittsburgh, Pennsylvania; that on September 26, 1929, while returning from a trip to Pittsburgh, Pennsylvania, at a point one and one-half miles south of Weirton, West Virginia, on the Pittsburgh-Steubenville pike and in the state of West Virginia, and while in the course of his employment, the claimant suffered certain injuries by reason of the bus going over an embankment; and that at the time the claimant started his employment with the Union Motor Transit, Inc., he was a resident of Steubenville, Ohio, and had been for three or four months prior thereto.
It is further agreed that the Union Motor Transit, Inc., was an Ohio corporation and had complied with the so-called Workmen's Compensation Law of Ohio for the benefit of itself and its employees by paying premiums into the state insurance fund; that the Union Motor Transit, Inc., was engaged both in intrastate and interstate business and that the claimant operated a bus of the company in both intrastate and interstate business; that at the time the claimant was injured he was returning from Pittsburgh, Pennsylvania, on a trip which had originated at Canton, Ohio, destined for Steubenville, Ohio, which would have completed his run for the day; and that he had on the bus seven passengers from Pittsburgh, Pennsylvania, destined for Steubenville, Ohio.
It is further agreed by and between counsel that on October 29, 1929, a report of the injuries received by the claimant was filed by the employer, the Union Motor Transit, Inc., with the Industrial Commission of Ohio; that subsequent to the filing of the report by the employer claims were filed by the doctors, nurses and hospital for services rendered to the claimant; and in response to inquiries as to why no action had been taken on these claims, the branch office deputy of the Commission interviewed the claimant and had him sign an application for compensation, which was duly filed with the Commission on January 8, 1930; that on February 7, 1930, the Commission recognized the claim as filed by the claimant and awarded compensation to the claimant in the amount of $275.89 from October 4, 1929, to January 13, 1930, and paid doctor and hospital bills in the total amount of $1054.53.
It is further agreed by and between counsel that on February 27, 1930, the claimant filed suit in the Common Pleas Court of Jefferson county, Ohio, against the Union Motor Transit, Inc., a corporation, being case No. 23467; that such case was dismissed on March 5, 1930, record marked "dismissed without prejudice to another action"; that on March 5, 1930, the claimant filed a suit against Union Motor Transit, Inc., being case No. 23480 in the Common Pleas Court of Jefferson county, Ohio, which suit was for $50,000 for personal injuries alleged to have been received by the claimant on the date of the accident.
At the time this suit was filed the claimant had as his attorneys Ramsay Wilkin of Wellsburg, West Virginia.
It is further agreed that exact copies of all the pleadings in this case, No. 23480, shall be made a part of this stipulation.
It is further agreed that on May 1, 1930, the Industrial Commission of Ohio made the following order:
"That any further compensation or consideration in this case be continued indefinitely, pending the outcome of the suit mentioned in Mr. Hedges' letter to the commission, dated April 28, 1930, and not then until the case has been carefully reviewed by the legal department and a detailed statement setting forth the facts and proceedings be placed in the file and the same to be submitted for special consideration of the commission."
The suit mentioned in Mr. Hedges' letter of April 28, 1930, is case No. 23480 in the Common Pleas Court of Jefferson county, Ohio.
It is further agreed by and between counsel that the following is a copy of the release given by the claimant, Pete Broskey, to the Union Motor Transit, Inc.:
"I, Pete Broske, of Steubenville, state of Ohio, in consideration of sixty-five hundred ($6500.00) dollars to me paid by Union Motor Transit Company, a corporation, Theodore Moray, John Caravanos and George Glekas, the receipt of which is hereby acknowledged, do hereby release and discharge the said Union Motor Transit Company and/or Theodore Moray, John Caravanos and George Glekas from any and all claims, demands, actions and causes of action of every name and nature which I now have or might have upon or against said Union Motor Transit Company and/or Theodore Moray, John Caravanos and George Glekas, and especially from all claims arising out of any and all personal injuries, damages, expenses and any loss or damage whatsoever resulting or to result from an accident to me occurring on the state highway between the town of Hollidays Cove and the east end of the Steubenville bridge, in Brooke county, state of West Virginia, on or about the twenty-sixth day of September, 1929.
"I am over 21 years of age and I understand that liability is denied by said Union Motor Transit Company and/or Theodore Moray, John Caravanos and George Glekas, who have made no agreement or promise to do or omit to do any act or thing not herein set forth, and I further understand that this release is to compromise and terminate all claims for injuries or damages of whatever nature, known or unknown, including future developments thereof, in any way growing out of or connected, or which may hereinafter in any way grow out of or be connected, with said accident, and in full settlement of a certain action pending in the Court of Common Pleas, Jefferson County, Ohio, entitled 'Pete Broske v. Union Motor Transit Company a corporation', and being Cause No. 23467 in said Court of Common Pleas, Jefferson county, Ohio.
"Witness my hand and seal this fifteenth day of June, 1931.
"(Signed) Pete Broske.
"The foregoing instrument was read to Pete Broske who said that he understood it; that he knew that in signing it he was setting up an effectual bar to any recovery at law for injuries therein referred to; that he was satisfied with the settlement, and he signed it, all in our presence, this fifteenth day of June, 1931.
"(Signed) Ralph B. Cohen, Steubenville, Ohio.
"(Signed) John D. Gardner, Steubenville, Ohio."
It is further agreed that on January 18, 1932, a journal entry in Case No. 23480, Jefferson county Common Pleas Court, was filed, which reads as follows, to wit:
"Case settled at costs of defendant; terms of settlement complied with; costs paid."
It is further agreed by and between counsel that upon the report of Mr. Ross Hedges, employed as referee for the Industrial Commission of Ohio, the Industrial Commission on March 3, 1932, made the following order:
"The proof on file now indicates that the claimant has started an action against this employer in court, in which he alleged that the Workmen's Compensation Act of Ohio had no application to his contract of employment. Said action has been settled and dismissed by the parties. It is ordered that all previous awards for compensation and benefits for medical and hospital expenses in this case be vacated and that the claimant and all parties receiving medical or hospital expenses in this case be ordered to refund same to the state insurance fund."
It is further agreed by and between counsel that on March 16, 1932, claimant filed an application for rehearing upon the order of the Commission of March 3, 1932.
It is further agreed that a copy of the application filed by the employer on October 31, 1929, and a copy of the application filed by the claimant on January 8, 1930, should be attached to the stipulation.
Copies of the pleadings were, as hereinbefore stated, made a part of the stipulation. We are referring only to such parts of the pleadings as we deem necessary to present the question herein involved.
The petition avers the corporate existence of the defendant company, its place of business, the nature of the business and that it was engaged in intrastate and interstate business; that it directed Broskey to drive and operate one of its automobile busses in the prosecution of its business; that such bus was worn and out of repair, of which fact he was ignorant; that his employer failed to provide him with a reasonably safe and suitable automobile bus with which to perform his duties, and that by reason thereof, on the 26th day of September, 1929, while operating the bus from the city of Pittsburgh, Pennsylvania, to the city of Steubenville, Ohio, at the direction, request and command of his employer, and under its immediate supervision, at a point along the state highway between the town of Hollidays Cove and the east end of the Steubenville bridge, in Brooke county, state of West Virginia, the brakes on the front wheel of the automobile bus locked and caused the bus to veer from the road and turn into and across the street railway track with such great force and violence that it overturned and upset, and as a direct and proximate result thereof plaintiff was injured.
He further states that at the time of the injury his employer was engaged in an occupation covered by the Workmen's Compensation Acts in West Virginia, Code, Chapter 15-p, and that such employer, prior to the occurrence of the injuries, had wholly neglected and failed to comply with the terms of the statute in reference to electing to come under the provisions of the statute and in reference to giving him notice of such intention, and in reference to the payment of the premiums into the state compensation fund as required by the statute so as to bring him and his employer within the benefits provided by said act; and that his employer gave him no notice of such intention and did not elect to come under the provisions of such statute, and wholly failed to comply with any of the provisions of said statute, by reason whereof he was wholly deprived of recovery of any benefits by reason of his injury, under the terms of such act.
He further alleges that his employer did elect under the acts of the Legislature of the state of Ohio and did comply with the act so as to come under the provision of the laws of Ohio, so as to provide for workmen's compensation for him in so far as his employment occurred and was performed in the state of Ohio; but that he and the employer did not elect to extend such compensation so that it would apply to interstate business, work or labor, and especially did not elect to extend such compensation so as to cover him while he was operating and driving an automobile bus along and over the highway of Brooke county, West Virginia.
The Union Motor Transit, Inc., interposed an answer in which it admits its corporate existence and the nature of its business; that Broskey was employed by it as a bus driver; that it was engaged in intrastate and interstate business; admits that it was its duty to use reasonable care to furnish plaintiff a reasonably safe place in which to work, and seasonably safe machinery; that on September 26, 1929, he was injured as claimed; that it did not elect to come under the provisions of the Workmen's Compensation Act of West Virginia as provided in West Virginia Code, Chapter 15-p; and that it did elect under the acts of the Legislature of the state of Ohio and complied with said act so as to come within the provisions of the Workmen's Compensation Law of Ohio, as provided in General Code Section 1465-73 et seq. It denies each and every other allegation made by Broskey.
For a second defense, it pleads specific compliance with the Workmen's Compensation Act of the state of Ohio, and asserts that for that reason it was absolved from liability in an action at law.
For a third defense it pleads the further fact that Broskey had theretofore applied to the Industrial Commission of the state of Ohio for compensation, and compensation had been granted, wherefore it was not liable and asked that plaintiff's petition be dismissed.
Application was made by Broskey to the Industrial Commission of Ohio thereafter for further compensation. This was refused. Rehearing was likewise refused and an appeal was taken to the Court of Common Pleas.
In his petition in the action against the Industrial Commission Broskey pleads the facts fully and fairly. He states that he is entitled to compensation under the laws of Ohio and prays for an award of compensation, together with costs and attorney fees.
The Industrial Commission answers, as stated by it, only because it is required to do so by the allegations of Broskey's petition; that it files its answer without entering its appearance, for the reason that the court has no jurisdiction of the subject matter or the parties. It denies each and every other allegation made by Broskey, except the allegations relative to the litigation of Broskey against the Union Motor Transit, Inc., and it asks that Broskey's petition be dismissed.
Broskey replied, denying each and every allegation of such answer save and except such as are admissions of the allegations of his petition.
Upon these issues, Broskey and the Industrial Commission went to trial. The trial court found in Broskey's favor and error was prosecuted to the Court of Appeals of Jefferson county, which court affirmed the finding and judgment of the Court of Common Pleas. Error is prosecuted to this court to reverse these judgments.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for plaintiff in error.
Mr. Stuart B. Moreland, Mr. Ralph B. Cohen, Mr. David M. Spriggs and Messrs. Moreland Moreland, for defendant in error.
The Industrial Commission complains briefly that the judgment of the Common Pleas court and that of the Court of Appeals should have been in its favor instead of Broskey's and that there are other errors apparent on the face of the record.
The only clear cut issue raised by the pleadings in this case is the jurisdiction of the trial court over the subject matter and the parties to the action.
The Industrial Commission does make the following claim in its brief:
"We contend that since this claimant filed a suit in the Common Pleas Court against the employer and by virtue thereof obtained several thousand dollars by way of settlement, he is now estopped from proceeding under the Workmen's Compensation Law. Even if he had a right under the Workmen's Compensation Law he has made no attempt to repudiate his former choice or to restore the benefits which he obtained by his suit in common law. It is our contention that that suit was properly filed and it seems to us that, at least, he cannot travel down two roads — reap the benefits of two methods — one of which is in direct opposition to the other."
Issues not raised by the pleadings cannot be raised in briefs. This contention of the Industrial Commission is a good plea in estoppel — if it is pleaded.
The election or selection of a forum is of little consequence only in so far as it affects the doctrine of estoppel. Unless Broskey's recovery from his employer in an action at law took away his right to proceed against the Industrial Commission for compensation, and unless the law weaves the facts in this case into the woof of non-liability, then Broskey's recovery from his employer amounts to just so much piffle, so far as this case is concerned, provided, of course, that Broskey under all the other attendant facts and circumstances is entitled to participate in the Workmen's Compensation Fund.
Leaving out of consideration the question as to the extra territorial jurisdiction of the Industrial Commission of Ohio and the interstate commerce phase of the case, can an employee, after having sued and recovered from an employer who was a contributor to the State Insurance Fund an amount satisfactory to him as damages for his injury on the theory that his case was not compensable, afterward be permitted to participate in the State Insurance Fund on account of the same identical injury?
If such contention could be maintained, is it not time to remove the blindfold from the eyes of the goddess that lawyers worship, so that she can see what is the matter with her scales?
Grant that Broskey's case is compensable. He comes now to the Industrial Commission seeking a gift which the Industrial Commission has no power to bestow. Why a gift? Because he has been fully compensated by his employer for the same injury he is presenting to the Industrial Commission.
Broskey's employer does not owe him one farthing, nor the fractional part thereof, yet Broskey is asking to participate in the premium his employer pays into the State Insurance Fund.
Broskey, in effect, claims that he recovered $6500 from his employer under a mistake of law, and now he seeks to cure that mistake of law by recovering from the Industrial Commission. Granting that there was a mistake of law, the employer must have been affected by it. The employer cannot recover back from Broskey the money it paid him under mistake of law. Such is the law of Ohio, regardless of what it may be in other jurisdictions.
Counsel for claimant insist that the Industrial Commission in the Common Pleas Court waived any defense it might have had by reason of Broskey's action against his employer.
We have examined the record with utmost care and fail to find such waiver therein. We do agree that the Industrial Commission presented this defense in a half-hearted way, as it evidently relied on the question of jurisdiction brought into the case by reason of the fact that Broskey was injured in the state of West Virginia while engaged in interstate commerce.
We regard those claims as secondary when the record develops the fact that claimant is seeking to be compensated twice for the same injury because of his own mistake of law as he claims.
It is not because of the fact that Broskey merely filed his suit against his employer because of a mistake of law that we deny him recovery against the Industrial Commission.
We recognize and realize that the legislative sanction for the Workmen's Compensation Law is contained in Section 35, Article II, of the Constitution of Ohio, and we quote from that section, as follows:
"For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries, or occupational disease."
We find no fault with the dictum quoted in Conrad, Admx., v. Youghiogheny Ohio Coal Co., 107 Ohio St. 387, page 395, 140 N.E. 482, 36 A. L. R., 1288, from the syllabus in Water, Light Gas Co. v. Hutchinson, 160 Fed., 41, 90 C.C.A., 547, 19 L.R.A. (N.S.), 219:
"The fact that a party through mistake attempts to exercise a right to which he is not entitled or has made choice of a supposed remedy which never existed, and pursued it until the court adjudged that it never existed, does not preclude him from afterwards pursuing a remedy for relief, to which in law and good conscience he is entitled."
Broskey should have everything to which "in law and good conscience he is entitled." That is the proposition exactly. Broskey has it. He is now seeking that to which "in law and good conscience" he is not entitled. If Broskey discovered his error of law before settlement, he should have dismissed his action at his own cost in "good conscience"; and if he discovered it afterward, he should have returned to his employer "in good conscience" the sum of $6500, which his employer paid him by way of settlement, apparently in "good conscience." if good conscience is a part of the criteria in an action at law, then both parties should follow it.
We are not denying Broskey his right to recover in this action for pursuing the $6500, but for getting it.
We feel that justice requires that we give to the Industrial Commission the benefit of the antithesis that sane reasoning must draw from Section 35, Article II, of the Constitution of Ohio, to the effect that an employee who in an action at law has recovered from his contributing employer substantial damages for personal injuries received by him while acting within the scope of his employment, cannot afterward recover compensation from the Industrial Commission of Ohio for the same injuries.
Our Workmen's Compensation Law is a product of both constitutional and statutory provision. The purpose of its enactment was to secure to employees accidentally injured in the course of their employment, compensation adequate to their injuries, and to secure it without delay. To this end the law is liberally construed in order that it may subserve the purposes of its enactment.
Can this law be so stretched as to warrant any court in ordering the Industrial Commission of Ohio to pay to a claimant, who admits that he has been paid by his employer satisfactory damages for his injury, compensation for the same injury?
Is this question raised in this case, and if so, how? We think that a good plea in bar is made in this action, and that the release executed by Broskey to the Union Motor Transit Company and others, set out in the agreed statement of fact, is conclusive against Broskey.
In his petition Broskey pleads the fact that he sued his employer in Jefferson county and the following final entry was made in the case, to wit:
"Case settled at costs of defendant; terms of settlement complied with; costs paid."
The Industrial Commission specifically admits these averments. These allegations and admissions were probably enough upon which to found an acquittance of the Industrial Commission. But we go further, to Broskey's release, contained in the agreed statement of fact, wherein Broskey states in so many words that he knew that in signing the release he was setting up an effectual bar to any recovery at law for injuries therein referred to and that he was satisfied with the settlement.
Suppose the employer in this case had been a self-insurer, could it not have set up the settlement and release made by Broskey as a bar to any future action for damages for the identical injuries? No one would contend for a moment but that the self-insuring employer could make such plea, and that if maintained it would be a complete bar to the action.
The State Insurance Fund is not a gratuity. It was not created for the purpose of providing double compensation.
The Industrial Commission is the administrator of the State Insurance Fund. It stands between the employer and the employee and is the handmaiden to both. Its primary duty is to see that each is accorded fair treatment by the other. If an employee sues an employer who is a contributor to the State Insurance Fund, and such employer does not see fit to set up such fact and stand upon it as a bar to the action, and instead settles with the employee for a substantial amount satisfactory to the employee, then it becomes the duty of the Industrial Commission, if such employee subsequently sues it for compensation, to plead the fact that such employee has been compensated by his employer. The Industrial Commission owes it to such employer not to take any more of his money to pay an employee whom he has fully paid. The Industrial Commission owes it to all employers to see to it that they shall not be required to pay compensation twice, and it owes it to the employees to see to it that no employee shall be compensated twice, to the end that the fund will be able to respond to the demands of future claimants who have not been compensated by their employers for their injuries. When Broskey settled with his employer in this case, the employer went out of the picture, and the Industrial Commission, its handmaiden, went with it.
Judgment of the Court of Appeals and Court of Common Pleas reversed, and final judgment rendered for plaintiff in error.
Judgment reversed.
WEYGANDT, C.J., JONES, MATTHIAS, BEVIS, ZIMMERMAN and WILKIN, JJ., concur.