ON MOTION FOR REHEARING. Relator raises a new point in his motion for rehearing. He contends the final award made to him by the Workmen's Compensation Commission on December 5, 1933, cannot operate as an estoppel by judgment on the issue of interstate commerce velnon, because the award was not fixed and determined by the Commission but was based on a compromise and stipulation between the parties, made under Section 3333, Revised Statutes 1929 (Mo. Stat. Ann., p. 8267). The mere approval by the Commission of this voluntary settlement was not a "jurisdictional" determination thereof, says the relator. He relies on State ex rel. Saunders v. Workmen's Compensation Commission, 333 Mo. 691, 697,63 S.W.2d 67, 69, to sustain his contention, and says respondents' opinion contravenes that decision.
Section 3333 provides that nothing in the Compensation chapter shall be construed as preventing parties to claims thereunder from entering into voluntary agreements in settlement thereof; but that no such agreements shall be valid until approved by the Commission; and that the Commission shall not approve such settlements unless they are in accord with the rights of the parties under the chapter. A later section, Section 3340, Revised Statutes 1929 (Mo. Stat. Ann., p. 8273), permits the Commission to review "any award" theretofore made, on the ground of a change in condition of the injured employee.
In the Saunders case an injured employee made a temporary agreement with his employer for partial compensation, and thereafter filed a "Final Receipt for Compensation" acknowledging receipt of a stated sum in consideration of which he released the employer from all liability under the Compensation Act by reason of the accident involved, "subject to review as provided in saidact." (Italics ours.) The settlement was approved by the Commission, apparently on mere inspection. Over four years later the employee filed with the Commission an application for review on the ground of a change in his condition. The Commission refused to consider the application, on the theory that it was without jurisdiction because the execution and approval of the foregoing Final Receipt for Compensation operated as a complete and final settlement of the employers' liability, under Section 3333, supra. Thereupon the employee brought mandamus in this court to compel the Commission to accept jurisdiction of his application for review.
The court en banc in a unanimous opinion conceded Section 3333 does authorize "a final settlement of all liability subject to the approval of the commission," which is not subject to review under Section 3340, notwithstanding the use of the words, "any award" therein; but held the Final Receipt for Compensation there in evidence *Page 961 "was not a settlement under Section 3333, and therefore was subject to review on the ground of changed condition, pursuant to Section 3340" (or would have been if the application had been filed in time). The main reason for this holding was that the final receipt expressly recited it was "subject to review as provided in said act." But the opinion took notice of another case: Brown v. Corn Products Refining Co. (Mo. App.),55 S.W.2d 706, where a receipt containing the same words was nevertheless treated as final because of other evidence showing it was intended to be so.
In the instant case the proof is abundant that the final receipt executed by relator Wors was intended to be conclusive. In the first place, the receipt expressly releases the employer from all liability "as provided under Section 3333, Revised Statutes 1929, for compromise lump-sum settlement." Further when the parties went before the referee, it was again stated the settlement was final as contemplated by Section 3333, and the referee asked Wors this question: "Mr. Wors, you have heard this stipulation and do you understand by entering into this compromise lump-sum settlement that closes your case forever under the Compensation Act and that you cannot under any circumstances reopen the case?" And relator Wors answered: "Yes." Thereafter the award based on the stipulation was made by the Commission.
There is nothing in the Saunders case holding such a settlement under Section 3333 is not a final award. The effect of the decision is to the contrary. A settlement under the section, when approved by the Commission, is even more conclusive than an ordinary award made by the Commission on disputed evidence, because the latter is subject to review on the ground of change in condition, whereas the former is irrevocable. Under the express terms of Section 3333 the approval of the Commission is necessary to make the settlement valid. And when so executed and approved there is no reason why it should not be the basis of a claim of res judicata or estoppel by judgment.