Opinion
No. 5145.
September 28, 1928.
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.
From a judgment of the district court affirming an award of the Industrial Accident Board, defendants appeal. Affirmed.
James F. Ailshie, Jr., and J. R. Smead, for Appellants.
In view of the undisputed facts appearing from the application for compensation and the agreement to pay such compensation which followed and which was entered into pursuant to such application, the agreement is unenforceable. This is especially true in equity. The representation of the status of the child as deceased's stepdaughter was false, was made as a fact and to induce payment of compensation, was material and was believed and relied upon by appellants in entering into said agreement; therefore, the agreement was fraudulently procured and should be rescinded and annulled. (Pomeroy's Eq. Juris., secs. 872, 873, 876, 880, 885, 890, 898, 899.)
If such representation was wilfully false, this constituted actual fraud involving moral delinquency. (Pomeroy's Eq. Juris., secs. 874, and note 2, 886; 26 C. J., p. 1108, sec. 38.)
And it was fraud, nevertheless, even though the representation was innocently made, because it would operate the same as intentional fraud; and consequently the agreement based thereon should be set aside on the ground of fraud, and for mistake as well. ( Brown v. Linn, 50 Colo. 443, 115 P. 906; Wilson v. Robinson,\ 21 N.M. 422, Ann. Cas. 1918C, 49, 155 P. 732; Jacobson v. Chicago, M. St. P. Ry. Co., 132 Minn. 181, Ann. Cas. 1918A, 355, 156 N.W. 251, L.R.A. 1916D, 144; Weise v. Grove, 123 Iowa, 585, 99 N.W. 191; Severson v. Kock, 159 Iowa, 343, 140 N.W. 220; Pennington v. Roberg, 122 Minn. 295, 142 N.W. 710; Drake v. Fairmont Drain Tile etc. Co., 129 Minn. 145, 151 N.W. 914.)
It is particularly true that in the administration of the Workmen's Compensation Law an agreement arrived at through mistake, or by fraud, or by gross irregularity or the like, should be set aside. ( Aetna Life Ins. Co. v. Shiveley (Ind.App.), 121 N.E. 50; Elliott's Workmen's Compensation Act, pp. 144, 148; Knowles' Workmen's Compensation, p. 99; Dutton v. Sneyd Bycars Co., Ltd., 1 K. B. 414.)
The Idaho Workmen's Compensation Law, which is the Uniform Act so far as its substantive provisions are concerned, intends that agreements made and filed in lieu of an award by the board shall provide for compensation only as contemplated and provided for by the law; and conversely, our law does not intend that persons not entitled to compensation shall receive it by agreement or otherwise. (1 C. S., sec. 6262; McNeil v. Panhandle Lumber Co., 34 Idaho 773, pp. 786, 787, 203 Pac. 1068.)
Ralph S. Nelson, for Respondents.
The compensation agreement entered into between the parties hereto at Coeur d'Alene on December 29, 1925, when approved by the Industrial Accident Board, had the force and effect of an award and was and is absolutely binding on all the parties thereto. ( Smith v. Brown, 81 Ind. App. 667, 144 N.E. 849.)
A compensation agreement or an award is an adjudication of all of the matters in dispute up to the time of its consummation or rendition and neither party can thereafter say it was wrong in any respect, and a petition to review a compensation agreement or an award by the Industrial Accident Board is limited to consideration of facts arising after the making of the original agreement or award. In the agreement it was agreed and stipulated that Marie Anderson was the stepchild of Emil Rodius. That is final. ( Franklin County Min. Co. v. Industrial Commission et al., 322 Ill. 555, 153 N.E. 608; Miller v. Keene, 232 Mich. 596, 206 N.W. 524; Indianapolis Pump Tire Co. v. Surface, 86 Ind. App. 55, 155 N.E. 835; Anderson v. Ford Motor Co., 232 Mich. 500, 205 N.W. 588.)
On the seventh day of November, 1925, while in the employ of the Coeur d'Alene Mill Company, Emil Rodius received a personal injury by accident, arising out of and in the course of his employment, which resulted in his death. Application for compensation under the Workmen's Compensation Act was made on behalf of his widow, Esther Rodius, and a "stepchild," Marie Anderson. Thereafter, the employer and its surety, United States Fidelity and Guaranty Company, entered into an agreement with Esther Rodius for the payment of compensation to her and the child. The agreement received the approval of the Industrial Accident Board. In September, 1926, Nellie Rodius, mother of the deceased workman, petitioned the Industrial Accident Board to reopen the case on the ground "that deceased's wife has remarried and is not entitled to compensation" and "the child now receiving compensation is not the child of decedent and is the illegitimate child of Esther Rodius." A petition to reopen (not appearing in the record) was also filed on behalf of the surety company, the grounds therefor evidently being similar to those contained in the petition of Nellie Rodius. One hearing before a member of the Industrial Accident Board was had on both petitions. The member awarded to Nellie Rodius the unpaid portion of the compensation originally awarded Esther Rodius, and reaffirmed the award in favor of the child; and the board adopted the award of the member. On appeal, the district court affirmed the award. Only the award to the child is here questioned.
The agreement of the employer and surety to pay the child compensation, having been approved by the board, had the same effect as an award of the board. ( Home etc. Co. v. Cahill, 71 Ind. App. 245, 123 N.E. 415; St. Joseph, Mining Co. v. Pettit, 90 Okl. 242, 216 P. 657; United States Fidelity Guaranty Co. v. State Industrial Commission, 125 Okl. 131, 256 P. 892; Chicago Bridge etc. Co. v. Sahin, 105 Okl. 62, 231 P. 851; Smith v. Port Huron etc. Co., 217 Mich. 519, 187 N.W. 292; Smith v. Brown, 81 Ind. App. 667, 144 N.E. 849.) Subject to review on appeal, an award, "in the absence of fraud," is "final and conclusive as between the parties" (C. S., sec. 6270), except that, on application therefor, "on the ground of a change in conditions," the board may make an award "ending, diminishing or increasing the compensation previously agreed upon or awarded." (C. S., sec. 6271.) Conceding, without deciding, that the board has power, in case of fraud, to vacate its approval of an agreement to pay compensation, and thereby render the agreement ineffective, application therefor should set forth the facts on which the vacation of such approval is sought. In this case there was neither allegation nor proof of fraud. The only evidence that might be said to tend to prove fraud consisted of a copy of a birth certificate of the child, signed by the attending physician, that it was illegitimate. Conceding even that the child was of illegitimate birth is not conclusive that it was not entitled to compensation. (C. S., sec. 6227.)
Treated as an application to review the award or agreement on the ground of a "change in conditions," the evidence fully sustains the finding of the board that "no change in the condition of the dependency of the minor, Marie Anderson, has taken place since the contract . . . . was entered into."
Having neither alleged nor proved fraud in the inception of the agreement and having failed to establish "a change in condition," the decision of the court, sustaining the board, was correct.
Judgment affirmed. Costs to respondents.
Budge, Givens and Taylor, JJ., concur.
Petition for rehearing denied.