Opinion
22301.
ARGUED JANUARY 13, 1964.
DECIDED FEBRUARY 6, 1964. REHEARING DENIED FEBRUARY 18, 1964.
Equitable petition. Chattooga Superior Court. Before Judge Fariss.
Wade H. Leonard, for plaintiff in error.
Matthews, Maddox, Walton Smith, Oscar M. Smith, C. C. Shaw, contra.
1. The petition failed to allege a cause of action for any relief, and the court properly sustained the general demurrers of the corporate defendant.
2. The State can not be sued without its consent.
ARGUED JANUARY 13, 1964 — DECIDED FEBRUARY 6, 1964 — REHEARING DENIED FEBRUARY 18, 1964.
Harold Lee Cardin filed a petition against Riegel Textile Corporation, "the Commissioner of Labor of the State of Georgia," and "the State Board of Workmen's Compensation of the State of Georgia." Allegations of fact set forth on the former appearance of the present case in this court ( Cardin v. Riegel Textile Corp., 217 Ga. 797, 125 S.E.2d 62), and alleged in the present action, need not be restated. As to the second award for partial disability entered July 13, 1960, the petition alleges: The State Board of Workmen's Compensation is without power and authority to make an award for partial incapacity to work unless the award is based upon the percentage of the difference between the average weekly wages before the injury and the average weekly wages the claimant is able to earn thereafter. The award entered on July 13, 1960, was under an erroneous theory of law and upon a theory or method not provided by the laws of Georgia. The petitioner is entitled to the amount of compensation legally due less the sums paid to him from December 25, 1959, through July 7, 1960, at $30 per week, and the sum of $3,000 paid under the award of July 13, 1960. The petitioner is presently disabled and has been since December 25, 1959. The award made and entered on July 13, 1960, hinders the petitioner from enforcing compensation payments in the sum to which he is entitled. A copy of the award of July 13, 1960, is attached as Exhibit "A." The State Board of Workmen's Compensation has no authority to make and enter an award in a compensation claim which is not provided in the Act. The prayers were: for process; that the award made and entered on July 13, 1960, be declared null and void and be set aside; for the issuance of second originals to be served as provided by law; and for other relief.
The general demurrers, and the renewed general demurrers, of the defendant Riegel Textile Corporation were sustained on July 18, 1963, and the petition "dismissed as to the defendant, Riegel Textile Corporation." On September 16, 1963, the judge of the superior court, on his own motion, passed an order reciting that, "no appeal having been taken from the judgment dismissing this case as to Riegel Textile Corporation within the time allowed by law, such judgment is the law of the case," and it was ordered that "this action be and it is hereby dismissed as to the defendants, the Commissioner of Labor of the State of Georgia and the State Board of Workmen's Compensation of the State of Georgia." In his bill of exceptions the petitioner assigns error on the judgment of the court sustaining the general demurrers of the defendant Riegel Textile Corporation, and the judgment of the court dismissing the petition as to the other defendants.
1. Attached to the petition as Exhibit "A" is a copy of the stipulation of the parties dated July 8, 1960, and the award thereon by the State Board of Workmen's Compensation on July 13, 1960. The stipulation recites that the employee sustained an injury arising out of his employment on or about November 12, 1959; that pursuant to an award by the board the employee has been paid $30 per week commencing December 25, 1959; that the employee experienced a change of condition on July 7, 1960; that he is entitled to $9.49 per week for the remaining 316 weeks for permanent partial incapacity for work; and that he has agreed to accept the sum of $3,000 in full and final settlement of all compensation benefits. The agreement of the parties was made the award of the board on July 13, 1960.
When the Board of Workmen's Compensation makes an award based upon an approved agreement of the parties, the only provision of law for further review is upon a change in condition, as provided by Code Ann. § 114-709. Lumbermen's Mut. Cas. Co. v. Cook, 195 Ga. 397 ( 24 S.E.2d 309). It was ruled on the former appearance of the present case ( Cardin v. Riegel Textile Corp., 217 Ga. 797, 799, supra) that: "It is a well established rule that an agreement between an injured employee and his employer, providing for compensation under the act, is, in the absence of fraud, accident, or mistake, binding on the parties." The petition in the present case charges neither fraud, accident, nor mistake, and the assertion that the award approved July 13, 1960, was not made within the terms of the act is not shown by any properly pleaded allegations. See South v. Indemnity Ins. Co. of North America, 39 Ga. App. 47 ( 146 S.E. 45).
2. The State Board of Workmen's Compensation is not a natural person, partnership, or corporation, but an agency of the State. Code § 79-101; Ga. L. 1943, pp. 167, 168 ( Code Ann. § 54-108). The State has not consented for this agency of the State to be sued and the petition in the present case is in effect a suit against the State. A suit can not be maintained against the State without its consent. See Cannon v. Montgomery, 184 Ga. 588 ( 192 S.E. 206); State Board of Educ. v. Board of Public Educ. c., 186 Ga. 783 ( 199 S.E. 641); Roberts v. Barwick, 187 Ga. 691 ( 1 S.E.2d 713); Florida State Hospital for the Insane v. Durham Iron Works, 194 Ga. 350 ( 21 S.E.2d 216); Musgrove v. Georgia R. Bkg. Co., 204 Ga. 139 ( 49 S.E.2d 26); Linder v. Ponder, 209 Ga. 746 ( 75 S.E.2d 814). The Commissioner of Labor serves solely in an advisory capacity to the State Board of Workmen's Compensation and has no authority over the board or its acts. Ga. L. 1950, p. 9 ( Code Ann. § 54-121). The trial court did not err in dismissing the petition.
Judgment affirmed. All the Justices concur.