Elsenpeter v. Potvin

Gallagher, Chief Justice. Certiorari to review an order of the industrial commission denying a joint petition of the employer and insurer to vacate an award (made on agreement of the parties) and for a rehearing on the question of liability. . The decedent, Edward Bowman, was fatally injured by an explosion in a building in Walker, Minnesota, on June 27, 1940. The building was owned by relator A. Potvin, who operated a garage therein under the name of “Motor Inn.” On July 18, 1940, the employer and insurer filed a “first report of injury” with the industrial commission. It named “Motor Inn Garage” as employer and Edward Bowman as injured employe and stated that Bowman’s average earnings were $20 per week. On August 21, 1940, *130 a “petition and agreement for award in fatal cases” was filed with the commission. It provided, among other things, that the employe “did on June 27, 19-40, at 4 o’clock P. M., sustain injury while employed by said employer, which injury occurred at Motor Inn Garage, Walker, Minn., and resulted in the death of said employe on June 27, 1940; that said deceased employe was receiving at the time of the injury wages at the rate of $20.00 per week.” The petition was signed: “C. J. Elsenpeter, Guardian of Virginia Bowman, Dependent of Deceased Employe. A. Potvin d/b/a/ Motor Inn, Employer, by Robert L. MacPhail for Hardware Mutual Casualty Co., Insurer of Employer.” An award of compensation based on the agreement was made and filed by the commission on the same day. On February 28, 1941, the employer and insurer petitioned the commission to vacate the award upon the ground that the agreement on which it ivas made was entered into under a “mistake of fact and law, and under the erroneous conclusion that said deceased Edward Bowman was at the time of his accidental death in the employ of the above named petitioner, A. Potvin.” The petition was supported by the affidavit of Potvin, which in part reads: “That your affiant had immediate notice of the accidental injuries and death of the deceased employe above named. That such accident and injury, resulting in death, occurred in the premises owned by your affiant, and that through error and mistake the fact of such injury and death was reported by affiant to his compensation insurer, the Hardware Mutual Casualty Company. That the making and filing of such report was done through error and mistake. That the deceased Edward Bowman was not in the employ and service of your affiant, and that in the belief and opinion of affiant, no liability exists on his part for compensation for the injuries and death of said employe to any surviving dependents of said deceased Edward Bowman.” It was also supported by the affidavits of John L. Nesbitt and Robert L. MacPhail, claim representatives of the insurer, who *131 participated in the settlement. The affidavits of Nesbitt and Mac-Phail each stated that from the “information available” to affiant at the time of the investigation he. erroneously concluded that the deceased was an employe of Potvin at the time of his death. Neither affidavit stated what the information was that .prompted the .erroneous conclusion as to decedent’s status on the date of the injury. The respondent filed objections to the petitions to vacate and supported them by several affidavits, to which reference will hereinafter be made. The commission denied the petition on May 7, 1941, ' The petition to vacate here involved was filed on June 13, 1941. It is a joint petition by the employer and insurer and alleges in part that the petition and agreement upon which the award was based was negotiated and entered into between the representative of the dependent and the Hardware Mutual Casualty Company, as agent and insurer of Potvin, and “under the erroneous conclusion and in pursuant [sic] to erroneous information to the effect that said deceased Edward Bowman was at the time of his death in the employ of the above named petitioner, A. Potvin.” Relator Hardware Mutual Casualty Company separately alleges that at the time of the investigation Potvin advised and informed it that Bowman was at the time of his death in the service and employ of Potvin; that subsequent to the 30th day of January 1941 the company was informed by Potvin that his former statement “was untrue, was an error, and that in truth and in fact said deceased was not on the .date thereof an employe of said alleged employer, A. Potvin”; that, “as a consequence of the foregoing mistaken, erroneous or dishonest statements on the part of the petitioner herein, A. Pot-vin, that they have been grossly mislead [sic] to their damage in assuming and accepting a responsibility and liability under the Workmen’s Compensation Law of the state of Minnesota.” The petition was supported by the affidavit of Potvin that he reported Bowman as his employe for the purpose of aiding and assisting Bowman’s widow to procure and obtain workmen’s compensation *132 benefits from his (Potvin’s) insurer. The employer and insurer also filed an affidavit by Ferris Gordon, court reporter for the Honorable Graham M. Torrance, district judge of the fifteenth judicial district, in which Gordon certified as to the correctness of certain exhibits (A and B) purporting to be a transcript of proceedings in two actions tried before Judge Torrance in Cass county. These actions were brought against Potvin by Paul P. Wigington and Ray Krueger, who were in the building at the time of the explosion, for the purpose of recovering damages for injuries sustained by them. Exhibit A is a transcript of testimony given by Potvin and Norris Bowman (father of Edward) at the trial of these actions. Exhibit B refers to motions for directed verdicts and rulings thereon. There was also an affidavit by George L. Bargen, the attorney who defended Potvin in the district court actions. Respondent filed an answer and objections to the petition. On August 6, 1941, the commission, one commissioner dissenting, denied relators’ second petition to vacate. The sole question here for review is whether the commission erred in so doing. Mason St. 1927, § 4319, permits an award to be set aside and a new hearing to be had only “for cause.” That means for good cause; that is, some such cause as fraud or surprise so that, in the exercise of sound judicial discretion, the award should be vacated and a new hearing had. 6 Dunnell, Dig. & Supp. § 10421; Herzog v. City of New Ulm, 199 Minn. 352, 272 N. W. 174; Mark v. Keller, 188 Minn. 1, 4, 246 N. W. 472, 473. It was not the purpose of § 4319 to permit repeated litigation of such issues as are susceptible of best and final decision in the initial hearing, but to permit adjustment of the award in relation to facts subsequently appearing so as “to assure a compensation proportionate to the degree and duration of disability.” Mark v. Keller and Herzog v. City of New Ulm, supra. It was held in Hawkinson v. Mirau, 196 Minn. 120, 264 N. W. 438, 265 N. W. 346, that a change in an employe’s physical condition so that he becomes unable to work is good cause for vacat *133 ing an award and granting a rehearing. Cf. Soderquist v. McGough Brothers, 210 Minn. 123, 297 N. W. 565. Where the petition to vacate is based upon the subsequent discovery rather than the subsequent development of new facts, there is a greater reluctance to grant a rehearing. In such a case the evidence must not be merely cumulative. Smith v. Independent Silo Co. 169 Minn. 96, 210 N. W. 624; Cooper v. Mitchell, 188 Minn. 560, 247 N. W. 805. In addition, and most significant in this case, the petitioner must not have been negligent in his efforts to obtain the newly discovered evidence earlier, or failing there, his neglect, if any, must be for some reason excusable. Meehan v. Mitchell Battery Co. 191 Minn. 411, 254 N. W. 584; Jovanovich v. St. Paul Corrugating Co. 201 Minn. 412, 276 N. W. 741; Seaman Body Corp. v. Industrial Comm. 214 Wis. 279, 252 N. W. 718. It was held in Abraham v. City of Highland Park, 274 Mich. 532, 265 N. W. 454, that to simply show, no matter how convincingly, that no employer-employe relationship existed in fact is not enough. Finally, a large measure of discretion is vested in the commission, and the court will not reverse unless a clear abuse appears. Smith v. Independent Silo Co. 169 Minn. 96, 210 N. W. 624; Cooper v. Mitchell, supra; Ogrosky v. Commonwealth Elec. Co. 172 Minn. 46, 214 N. W. 765; Kallgren v. C. W. Lunquist Co. 172 Minn. 489, 216 N. W. 241. Belators rely upon the testimony of Potvin and Norris Bowman, given at the trial of the district court actions. It does not seem to us that this testimony was properly before the commission. Consequently, it was not for the commission’s, nor is it for our, consideration. In any event, it was not before the commission on relators’ first petition to vacate. It would appear from the record that respondent’s attorneys offered to waive objection to the filing of the proposed transcript when certified if they were given a reasonable opportunity to prepare and serve counteraffidavits, but that relators’ attorneys did not file or use the transcript at that time. We do not find in the record a consent to use the transcript on the second petition to vacate or anything to indicate that re *134 spondent’s .attorneys were furnished with a certified copy of it.Respondent incorporated the correspondence between the attorneys in her answer and objections to the second petition. It was, of course, incumbent upon relators to make the record affirmatively show the facts upon which they relied. If, as the printed record here shows, the transcript was not made a part of re; lators’ case, it was not in the case and cannot be considered at all. A finding must be based upon evidence received in the course of the. trial. St. Paul & Sioux City R. Co. v. McDonald, 34 Minn. 182, 25 N. W. 57. It is not permissible for the trier of fact to obtain or consider other evidence. Huyink v. Hart Publications, Inc. 212 Minn. 87, 2 N. W. (2d) 552. Claesgens v. Animal Rescue League of Hennepin County, Inc. 173 Minn. 61, 216 N. W. 535. In that view, neither the commission nor this court sitting in review of the commission’s decision has any right to consider the evidence in the personal injury cases. In no view of the case did the commission, nor does this court sitting in review, have any right to consider the transcript against respondent’s objection. It is the law that evidence given at a former trial, in which the party objecting was not a party is not permissible. Louisville & N. R. Co. v. Scott, 232 Ala. 284, 167 So. 572; Lupino v. Sestanovich, 115 N. J. L. 217, 178 A. 769; 31 C. J. S., Evidence, § 387; Cf. Palon v. G. N. Ry. Co. 135 Minn. 154, 160 N. W. 670; 2 Dunnell, Dig. § 3306a. The rale applies in workmen’s compensation cases. The industrial commission is bound by the rule the same as a court. Citizens B. & T. Co. v. Reid Motor Co. 216 N. C. 432, 5 S. E. (2d) 318; Milne v. Sanders, 143 Tenn. 602, 228 S. W. 702. Findings of fact by the industrial commission must be based upon competent evidence. Bliss v. Swift & Co. 189 Minn. 210, 248 N. W. 754; Babich v. Oliver I. Min. Co. 157 Minn. 122, 195 N. W. 784, 202 N. W. 904. Even if the transcript was a part of the record, either by consent or otherwise, there was still a fact question for the commission as to whether relators showed “good cause” for the vacation. The important question presented was whether the deceased was an employe of *135 Potvin at the time of the injuries which resulted in his death. Aside from the report of accident and settlement agreement in which he (Potvin) and his insurer listed Bowman as Potvin’s employe, there was presented to the commission other evidence to the effect that such relationship existed. The affidavit of Bobert A. Oliver, publisher of the Gass County Pioneer, states that on the day of the accident Potvin told him that Edward Bowman was in his employ. He made a similar statement to A. B. Oliver, judge of probate of Cass county, on the date of the accident. It appears from the affidavits of the Olivers and others that Edward Bowman worked in Potvin’s garage; that he sold gas, made repairs, and otherwise carried out Potvin’s instructions. Even the testimony of Potvin given at the trial of the district court actions, if competent, leaves confusion as to the relationship between the parties. In his original answer in one of these actions Potvin admitted that Edward Bowman was in his employ at the time of the accident. It was not until after he had been sued in two district court actions for amounts exceeding his liability policy limits that Potvin had a “change of heart.” The commission was not required to change its decision every time Potvin changed his mind. Nor was the testimony of Norris Bowman, if competent, so compelling as to require the granting of relators’ petition. In any event, it was not controlling on the question of whether relators showed good cause for vacating the award. The insurer made its investigation and concluded that decedent was in the employ of its insured at the time of his death. It so reported to the commission and completed the negotiations for the settlement upon which the award was based. It joined in the first petition to vacate in which it was alleged that the settlement was made because of a “mistake of fact and law.” Failing in that, it switched its position and asked relief on the ground that a fraud was perpetrated upon it by its insured. It is apparent that the facts upon which the insurer relied on the second hearing were available to it on the first hearing. There was no abuse of its *136 discretion on the part of the commission in denying the relief sought as to either relator. An attorneys’ fee of $100 is allowed respondent. Writ discharged.