Akin v. Shelton

• Decision Date: 21 January 1936
• Docket Number: Case Number: 26003
• Citation: 175 Okla. 536,53 P.2d 661,1936 OK 39
• Parties: AKIN et al. v. SHELTON
• Court: Oklahoma Supreme Court

1936 OK 39

53 P.2d 661

175 Okla. 536

AKIN et al. v. SHELTON

Case Number: 26003

Supreme Court of Oklahoma

Decided: January 21, 1936

Syllabus

¶0 MASTER AND SERVANT - Workmen's Compensation Law - Jurisdiction of Industrial Commission Exclusive When Employer Has Obtained Workmen's Compensation Insurance Policy Covering Employee.

To bring an employee within the Workmen's Compensation Act, employer must obtain workmen's compensation insurance as provided in section 13374, O. S. 1931, and when said section has been complied with, that is, when an employer has obtained a workmen's compensation insurance policy covering said employee, section 13352, O. S. 1931, is not applicable, and the State Industrial Commission has exclusive jurisdiction.

Appeal from District Court, Creek County; J. Harvey Smith, Judge.

Action by Dillard Shelton against F.O. Akin and others. Judgment for defendants, plaintiff's motion for new trial sustained, and defendants appeal. Reversed and remanded, with directions.

Green & Farmer and J.E. Thrift, for plaintiffs in error.

Speakman & Speakman, for defendant in error.

CORN, J.

¶1 The parties will be referred to as they appeared in the trial court, the defendant in error as plaintiff and the plaintiffs in error as defendants.

¶2 This is an appeal from an order of the trial court of Creek county sustaining motion for a new trial.

¶3 The material allegations of the plaintiff's amended petition, briefly stated, are: That he was employed by the defendants, and on December 5, 1933, while working in the oil fields, he received personal injuries, and that the defendants had failed and refused to comply with the Workmen's Compensation Act in that they had failed and refused to secure the payment of compensation for its injured employees as required and provided for by the laws of this state.

¶4 The material part of defendants' answer is as follows: That the court has no jurisdiction over the subject-matter of this action, for the relation of master and servant existed between the plaintiff and these answering defendants and same is shown by the face of the petition herein, and that the State Industrial Commission of the state of Oklahoma is the only board or court of this state having jurisdiction of the subject-matter.

¶5 Upon a jury trial, at the conclusion of plaintiff's evidence, the trial court sustained a demurrer thereto, upon the ground the district court did not have jurisdiction; that the State Industrial Commission had exclusive jurisdiction.

¶6 Upon plaintiff's motion for a new trial, the matter was thoroughly briefed and argued before the trial court. The court reversed its previous decision, and held that the district court did have jurisdiction; that the provisions of the Workmen's Compensation Act had not been complied with.

¶7 The facts as testified by the filing clerk of the Industrial Commission are substantially as follows: That forms of notice to be given by the employer to the Industrial Commission were prescribed by the commission and that none had ever been filed in the instant case. She further testified that the copy of the insurance policy issued to defendants had ever been filed.

¶8 The only thing that had ever been filed with the Industrial Commission was what is called a "coverage card." This seems to be a card prescribed by the rules of the commission requiring insurance companies to fill out said card, which is used for the convenience of the filing clerk. It is separate and apart from the notice required by statute, and from the copy of the policy which is required to be filed. With reference to this coverage card the witness testified as follows:

"Q. When was the first record filed in your office showing that there was any insurance carried by the Akin Oil Company? A. January 22, 1934. Q. When was that filed with you (the 'coverage card')? A. January 22, 1934. Q. And previous to that time there was nothing on file in your office or before the Industrial Commission showing that the Akin Oil Company had procured insurance? A. No, sir."

¶9 The "coverage card" shows that the Casualty Reciprocal Exchange issued and delivered to F. O. Akin Oil Company a workmen's compensation insurance policy effective November 18, 1933. Other evidence of the plaintiff was that no notice was posted by the employer about the place of business stating that the employer had complied with the provisions of the Workmen's Compensation Act.

¶10 Section 13351, O. S. 1931, is as follows:

"Every employer subject to the provisions of this act shall pay, or provide as required by this act, compensation according to the schedules of this article for the disability of his employee. * * *"

¶11 Section 13352, O. S. 1931, provides:

"The liability prescribed in the last preceding section shall be exclusive, except that if an employer has failed to secure the payment of compensation for his injured employee, as provided in this act, then an injured employee * * * may maintain an action in the courts for damages on account of such injury. * * *"

¶12 Section 13374, O. S. 1931, Employer's Insurance - Methods of Securing, provides:

"An employer shall secure compensation to his employees in one of the following ways:

"(a) By insuring and keeping insured the payment of such compensation with any stock corporation or mutual association or by exchanging contracts of indemnity or inter-insurance, under reasonable regulations prescribed by the commission providing for and securing the payment of the compensation provided in this act, or other concerns authorized to transact the business of Workmen's compensation insurance in this state. If insurance be so affected in such corporation or mutual association or reciprocal or inter-insurance association, the employer shall forthwith file with the commission, in form prescribed by it, a notice specifying the name of such insurance corporation or mutual association or reciprocal or inter-insurance association together with a copy of the contract or policy of insurance."

¶13 The facts as disclosed by the record, briefly stated, are: The defendant had a workmen's compensation insurance policy issued, effective November 18, 1933, covering the said plaintiff; said injury occurred on December 5, 1933; the "coverage card" was not filed with the Industrial Commission until January 22, 1934; and defendant did not forthwith file with the commission a notice with a copy of the policy, as provided in section...