
    Byrne v. Vanderbilt.
    (Decided June 26, 1933.)
    
      Mr. Edward M. Ballard, for plaintiff in error.
    
      Mr. August A. Rendigs, Jr., and Mr. Edward Lee Meyer, for defendant in error.
   Hamilton, P. J.

Sallie Byrne brought an action against the defendant, O. De Gray Vanderbilt, to recover for personal injuries. She states in her petition that the defendant undertook to transport her from the defendant’s home to church by means of an automobile depot wagon, operated by one of the defendant’s employees, duly authorized, and while she was being so transported the automobile was carelessly and negligently caused or permitted to run into a pole with great violence,'causing serious injuries to the plaintiff, for which she claims damages.

The defendant answered, admitting that the plaintiff was injured while riding in an automobile operated by one of the defendant’s employees, and follows this admission with a general denial. As a second defense the defendant pleads in substance that the plaintiff Byrne was his employee, employed as a cook, and that one of the conditions under which she entered the employ of this defendant was that she be transported to church. He then pleads that he employs more than three persons, that in accordance with the provisions of the law he pays into the workmen’s compensation fund, and that the transporting to church was a part of the contract of her employment, and he is therefore protected by the Workmen’s Compensation Law (Section 1465-37 et seq., G-eneral Code). He further alleges in the second defense that, after the injury, the plaintiff applied to the Industrial Commission for compensation, and that an award was made by the commission.

A demurrer to this second defense was overruled. Plaintiff thereupon replied that, if she signed an application for compensation to be paid to her from the workmen’s compensation fund, she did not know it; that she could only read with great difficulty, and, while in a dazed condition, signed a certain paper writing, the contents of which she states she did not read and which were not read to her, but plaintiff states that she signed the same on the representation that it was necessary for her to sign the paper in order that the defendant might collect the insurance on his automobile. Plaintiff further states that she did receive a check for $37.50, but did not know what it was for, and further pleads in reply that her injuries were not suffered in the course of her employment and the Industrial Commission had no jurisdiction to make any award.

The defendant, Vanderbilt, then moved for judgment on the pleadings.- The trial court sustained the motion and entered judgment on the pleadings. From that judgment, error is prosecuted to this court by the plaintiff below.

The trial court must have taken the view that the filing of the claim with the Industrial Commission, and acceptance of the award, no matter what the circumstances, constituted a bar to any action against the plaintiff’s employer.

We know of no cases, and none has been cited, bearing on a situation such as we have here.

The reply in effect charges a fraud upon the plaintiff and the Industrial Commission in the bringing of the proceeding under the Workmen’s Compensation Law.

The general rule is that fraud vitiates all proceedings, whether practiced upon the party or a court, or both. If the allegations of the reply are true, and notwithstanding the misrepresentation or fraud perpetrated the party affected is barred from bringing the action, we would have the situation of an employer perpetrating a fraud on a party injured and on the Industrial Commission, and thus absolving himself from all liability. We do not believe the law will sustain such a proposition.

We are of opinion that either the plaintiff or the Industrial Commission, or both, if the facts warrant it, may repudiate the claim and all action thereunder. The allegations of the reply make a direct attack on the proceedings, and it is the law that the judgment of a court may be set aside by direct attack for fraud practiced on the court. If the plaintiff and the Industrial Commission were thus imposed on, it would leave the parties as if no claim had been filed with the Industrial Commission, and we are of opinion that this is the situation here.

If fraud is established, the issue remains as to whether or not the injuries were received in the course of the employment; there being no allegation of wanton or willful negligence.

It is suggested by counsel for the plaintiff in error that in any event the payment of the $37.50 by the Industrial Commission was a payment under mistake of law. This position is not tenable, as it is purely a question of fact as to whether or not the plaintiff received the injuries in the course of the employment, and the commission must have found that she did.

The judgment of the court of common pleas is reversed and the cause remanded to that court for a new trial upon the issues suggested, and for further proceedings according to law.

Judgment reversed and cause remanded.

Cushing and Boss,’ JJ., concur.  