Opinion
13593.
MARCH 14, 1941. REHEARING DENIED MARCH 29, 1941.
Petition for injunction. Before Judge Humphries. Fulton superior court. October 16, 1940.
Neely, Marshall Greene, for plaintiffs.
T. Elton Drake, Ben H. Berry, and Mildred Kingloff, for defendants.
There being no provision of law authorizing a judge of the superior court to set aside an award of the Industrial Board on the ground of newly discovered evidence, it is not erroneous for a court of equity to refuse to enjoin prosecution of an appeal therefrom, and to decline to remand the case to the Industrial Board with direction that the board hear evidence upon the contentions of plaintiff in error that the original award was procured by fraud, and then consider and pass on all questions of law and fact for decision in said case; the record not presenting a case where the appellants were seeking to show, on the hearing of the appeal, that the order was obtained by fraud, and asking the court to set the same aside on that ground.
No. 13593. MARCH 14, 1941. REHEARING DENIED MARCH 29, 1941.
Liberty Mutual Insurance Company and National Fruit Products Company filed in the superior court a petition against B. H. Ragan, doing business as Ragan Plumbing Heating Company, and J. R. Kinsey. It is alleged, that the Insurance Company is the compensation insurance carrier for the Fruit Products Company, under the Georgia workmen's compensation act; that Kinsey presented to the Georgia Industrial Board a claim of compensation for injury alleged to have been sustained in the course of his employment, against B. H. Ragan doing business as Ragan Plumbing Heating Company, who was uninsured, as well as against National Fruit Products Company and Liberty Mutual Insurance Company; that on July 11, 1940, the Industrial Board rendered an award in affirmance of award of a deputy director for permanent total disability not in excess of 350 weeks, together with medical and hospital expense not exceeding $500, said awards being against petitioners alone; that petitioners appealed from said award to the superior court of Fulton County, and the same is now pending; that the effect of said award is to hold that Ragan was not subject to the provisions of the workmen's compensation act, by reason of the fact that at the time of the injury he did not have regularly in his employment as many as ten persons, so that the award was entirely against National Fruit Products Company and its insurance carrier. Petitioners contended in their said appeal that Ragan was an independent contractor, but that if he should be held to be a subcontractor, he was yet the immediate employer of the claimant, and that under the Code, § 114-112, the claim of Kinsey for compensation had to be first presented against Ragan, and that Kinsey would have to exhaust his rights against Ragan before the Industrial Board would have power or jurisdiction to render an award in favor of the claimants against petitioners. It was contended before the Industrial Board and in the prosecution of the appeal that the evidence before the board demanded the finding that at the time of the alleged injury Ragan had regularly in his employment more than ten persons and was subject to the workmen's compensation act, and that the board was without power or jurisdiction to render an award in favor of Kinsey against the Fruit Products Company and the Liberty Mutual Insurance Company until after an award had been rendered against the immediate employer Ragan, and until Kinsey had shown that he was not successful in collecting such award from Ragan. Petitioners averred that in the hearing by a deputy director of the Industrial Board Ragan appeared as a witness and testified that for the period ending September 30, 1939, which included the date on which Kinsey suffered his injury, September 28, 1939, Ragan had in his regular employment only nine persons, one short of the number necessary to bring him within the provisions of the workmen's compensation act and within the jurisdiction of the Industrial Board; and other allegations in detail, that Ragan, having at the time of the injury as many as ten or more employees, concealed the knowledge of such fact from the deputy director at the hearing before the Industrial Board.
The concluding paragraphs of the petition, and the prayers, were as follows: Petitioners aver that it would be inequitable and unjust to permit the appeal to be prosecuted further until a hearing can be had upon the rights of petitioners to have it determined in this action whether or not the said Ragan as the immediate employer of Kinsey was subject to the jurisdiction of the Industrial Board of the State of Georgia, or that the finding of fact by the deputy director that he was not subject was obtained by fraud, based upon the falsified records compiled and prepared by Ragan for the purpose of demonstrating to the deputy director that he did not have in his employment, at the time of the injury to Kinsey, ten or more employees; and petitioners aver that the ends of justice would be met by a hearing upon their equitable petition before or at most along with any hearing which may be had upon the appeal, for the reason that a finding of fact by the Industrial Board will not be subject to review upon an ordinary appeal, where there was evidence to support such finding of fact, unless induced by fraud; that said findings of fact having been obtained by fraud and misrepresentation, the same should, upon this application, be reviewed; petitioners alleging that they did not know of said fraud at the time of the hearing before the deputy director, nor could they have discovered the same in the exercise of ordinary care, and that they exercised all ordinary care in the premises. Their prayers were: (a) That the prosecution of the appeal be restrained until further order of court, and enjoined until a hearing upon this their petition. (b) That Kinsey be restrained, until further order of the court, from insisting upon the prosecution of his appeal by petitioners. (c) That Ragan be required to give his consent to the examination of the reports filed by him under the Federal social-security act, and especially report on form SS-la filed with the collector of internal revenue in Atlanta, for the quarter ending September 30, 1939, and that Ragan discover and present to the superior court a carbon copy of report on form SS-la for the quarter ending September 30, 1939, giving the amounts and wages paid and the names of persons employed during that quarter. (d) That the award be set aside, and all further proceedings against petitioners be restrained until Kinsey shall have exhausted his remedy under the Georgia workmen's compensation act against Ragan, and that the case be remanded to the Industrial Board for further hearing and findings of fact upon the question of the number of employees regularly in the service of Ragan during September, 1939, and the liability of Ragan for compensation to Kinsey for his injuries. And for such other and further relief as may seem proper.
Testimony at the hearing tended to support the contentions of the plaintiffs, the defendants' evidence being to the contrary. The awards by the deputy director, and by the board were introduced. Neither contained a finding as to the number of employees of Ragan at the time of the injury. The deputy's award, approved by the board, found that the claimant was an employee of National Fruit Products Company, and not an employee of an independent contractor. The award contained findings of fact, but the evidence on which those findings were made is not in the present record. The judge refused to grant an injunction. The plaintiffs excepted, assigning error as follows: "To the ruling and judgment of the court, dated November 1, 1940, denying their application for an interlocutory injunction, Liberty Mutual Insurance Company and National Fruit Products Company then and there excepted and now except and assign the same as error as being contrary to law, contrary to the evidence, contrary to the principles of equity and justice; and they aver and contend that said ruling and judgment constituted an abuse of discretion by the presiding judge, it being the contention of plaintiffs in error, that, as they adduced evidence to support the allegations of their petition for an interlocutory injunction, it was the duty of the judge of Fulton superior court to grant the interlocutory injunction and remand the case of Liberty Mutual Insurance Company and National Fruit Products Company v. J. R. Kinsey and B. H. Ragan, doing business as B. H. Ragan Plumbing Heating Company, No. 131215, Fulton superior court, to the Industrial Board with direction that the board hear evidence upon the contention of plaintiffs in error that the original award therein was procured by fraud and then consider and pass upon all questions of law and fact for decision in said case."
It is the insistence of the plaintiffs, that Ragan is the immediate employer against whom the claim for compensation shall be in the first instance presented, before in any event they are liable under the Code, § 114-112; that Ragan fraudulently represented to the board that he had regularly in service at the time less than ten employees (Code, § 114-107), so as to render the law inapplicable to him; that the workmen's compensation act makes no provision for introduction of evidence on the hearing of an appeal in the superior court, as ruled in Burdett v. Etna Life Insurance Co., 40 Ga. App. 92 ( 149 S.E. 55), and other cases; and that the facts upon which the superior court was authorized to exercise jurisdiction were those, and only those, contained in the record transmitted to it by the Department of Industrial Relations ( Department of Industrial Relations v. Travelers Insurance Company, 177 Ga. 669, 672, 170 S.E. 883); that they have a right to have the Industrial Board consider and hear the evidence with respect to the alleged fraud of Ragan and determine for itself whether at the time of Kinsey's injury he did not have as many as ten employees; that they produced at the injunction hearing substantial proof to sustain their contention that the judge, although evidence was in conflict, abused his discretion in not remanding the case to the Industrial Board for another hearing in order that plaintiffs may present to the board the evidence as to this matter which has been discovered by them since the hearing before the board. The only exception is to the denial of the injunction. The only matter which the petition seeks to enjoin is the prosecution of the appeal. The order denying the injunction begins with a recital that "The within case coming on to be heard in conjunction with the appeal of Liberty Mutual Insurance Company et al. v. J. R. Kinsey et al., No. 131215, Fulton Superior Court, together with other evidence introduced in the hearing in this case," but the record contains nothing more as to what became of the appeal. The prayer for injunction is only incidental to the real relief prayed for, to wit, that the case be remanded to the Industrial Board for further hearing and findings of fact, for that, as they contend, there is certain newly discovered evidence which came to their knowledge after the hearing, to obtain which they have used due diligence, and which, had they an opportunity to present the same to the board, would require a finding that the award should not have been made against them. In its essence this is an effort to obtain, by decree of an equity court, a setting aside of the award and a grant of a new hearing on the ground of newly discovered evidence. There is no provision of law authorizing the judge of the superior court to set aside an award of the Industrial Board on the ground of newly discovered evidence. White Provision Co. v. Culbreath, 58 Ga. App. 628 ( 199 S.E. 318). See Continental Casualty Co. v. Caldwell, 55 Ga. App. 17, 19 ( 189 S.E. 408). Equity is ancillary, not antagonistic, to the law. Code, § 37-103. The grounds upon which the superior court may set aside an order or decree of the Department of Industrial Relations are set forth in the Code, § 114-710; and after naming them the section continues: "No order or decree of the Department shall be set aside by the court upon any grounds other than one or more of the grounds above stated. If not set aside upon one or more of such stated grounds, the court shall affirm the order, judgment, decree, or decision of the Department so appealed from." Newly discovered evidence is not one of the stated grounds. This section does, however, declare that upon the hearing of the appeal the court shall set aside the order or decree if be it found that "the order or decree was procured by fraud." The court does this, not in the exercise of its equitable powers, but its appellate powers. Compare Hartford Accident Indemnity Co. v. Cox, 191 Ga. 143 ( 11 S.E.2d 661).
The complainants herein were not attempting to show upon the hearing of the appeal that the order or decree was procured by fraud, but they were seeking to enjoin the hearing. They were not calling on the court to find that the award was procured by fraud and to set it aside on that ground, but to remand the case to the Industrial Board with direction to hear evidence as to the contention that it was procured by fraud. It was not erroneous to refuse an injunction.
Judgment affirmed. All the Justices concur.