Barton v. Okla., K. & M. Ry. Co.

• Decision Date: 20 November 1923
• Docket Number: Case Number: 12089
• Citation: 1923 OK 977,220 P. 929,96 Okla. 119
• Court: Oklahoma Supreme Court
• Parties: BARTON v. OKLAHOMA, K. & M. RY. CO.

1923 OK 977

220 P. 929

96 Okla. 119

BARTON v. OKLAHOMA, K. & M. RY. CO.

Case Number: 12089

Supreme Court of Oklahoma

Decided: November 20, 1923

Syllabus

¶0 1. Master and Servant--Workmen's Compensation Law--Election of Remedies.

Section 7302, Comp. Okla. Stat. 1921, provides that, when a workman entitled to compensation under chapter 246, Session Laws 1915, known as the "Workmen's Compensation Act," shall be injured by the negligence or wrong of another, not in the same employ, he shall elect whether to take compensation under said act or pursue his remedy against such other.

2. Same.

In the absence of any statutory provisions or rule of the State Industrial Commission defining what shall constitute an election as provided for in section 7302, Comp. Okla. Stat. 1921, any decisive act of a party, with knowledge of his rights and of the facts, indicating an intent to pursue one remedy rather than the other, determines his election.

3. Same--Right of Action Against Third Party After Dismissal of Claim.

Where a workman, while performing labor for his employer, who is subject to the Workmen's Compensation Act (chapter 246, Session Laws 1915), is injured by the wrongful acts and negligence of a third party, and files a claim for compensation with the State Industrial Commission, which results in an award being made to such claimant, does so without knowledge of his right against said third party, and upon gaining knowledge of said right, and before receiving any compensation under said order petitions the said commission to vacate said order and to dismiss his claim for compensation, and where the commission complies with said petition, held, such proceeding before the commission does not in law constitute such an election to pursue his remedy under the Workmen's Compensation Act, as provided for in section 7302, Comp. Okla. Stat. 1921, as to constitute a bar to a subsequent proceeding against said third party, in the absence of circumstances creating an equitable estoppel, and an instruction so advising the jury is erroneous and constitutes reversible error.

4. Same.

The question as to whether the injured workman, under the facts set forth in the preceding paragraph, had knowledge, at the time of filing and prosecuting his claim before the commission, of his right to elect whether to pursue his remedy under the Workmen's Compensation Act, or against the defendant railway company, was a question of fact to be submitted to the jury, and in the absence of such knowledge, his action against the defendant railway company would not be barred by said proceeding before the State Industrial Commission.

Shannon & Shannon, for plaintiff in error.

Ray McNaughton, for defendant in error.

MASON, J.

¶1 This cause of action was commenced in the district court of Ottawa county, Okla., by the plaintiff in error, hereinafter called the plaintiff, against the defendant in error, hereinafter called the defendant, to recover damages alleged to have been caused by the negligence of the defendant in operating one of its electric cars. Plaintiff had driven a wagon and team belonging to him on the railway track of the defendant on the 22d day of November, 1918, alongside of the manufacturing plant of the Joplin Supply Company in the city of Commerce, Okla., for the purpose of unloading a section of floor which was then on his wagon. While stationed on defendant's track, he was run into by one of defendant's electric motor cars, which inflicted upon him severe personal injuries and injured his wagon, team, and harness. At the time of said accident, plaintiff was working for the Joplin Supply Company, a corporation, subject to the provisions of the Workmen's Compensation Law of the state of Oklahoma.

¶2 Thereafter, on the 27th day of March, 1919, plaintiff filed with the State Industrial Commission a claim for compensation on account of the injuries received by him in said accident. Thereafter, the State Industrial Commission, on the 7th day of April, 1919, made an award allowing plaintiff $ 10 per week, beginning on the 6th day of December, 1918, and continuing until the termination of his disability. On the 23d day of April, 1919, a letter signed by the plaintiff was filed with the State Industrial Commission wherein he set forth a statement of the accident as above set forth, and stated that, at the time of the accident, and at the time the claim for compensation was filed with the Industrial Commission, he had not been informed of this legal rights in the matter and had no knowledge of his right to elect to proceed either in that manner or against the said railway company to recover damages for the injuries sustained. He also stated that the compensation allowed under the Workmen's Compensation Law was wholly inadequate to cover his injuries and requested the commission to set said award aside and dismiss his petition. Thereafter, on April 25, 1919, the commission made an order finding that the award had been made upon the application of the claimant without advice as to his legal rights, and that he was injured by a third party, the Oklahoma, Kansas & Missouri Railway Company, and that the claimant desired to proceed against said third party, and thereupon ordered that the award be set aside and that the claimant be permitted to proceed against said third party. Thereafter, on the 30th day of April, 1919, plaintiff filed his petition herein to recover damages on account of said injuries received as a result of the alleged negligence on the part of the defendant. In answer to plaintiff's petition, the defendant in addition to other defense, pleaded that the defendant elected to take compensation against his employer, Joplin Supply Company, and its insurance carrier, for his said injuries, and that by reason of said election the plaintiff's cause of action herein was barred.

¶3 The plaintiff, in reply to defendant's answer, denied that be had made said election, but admitted that compensation had been awarded him by the Industrial Commission and that he had signed some instrument relating to his said injuries to be filed with said commission, and that the same may have been an application for compensation, but that at the time he filed said instrument he had not been informed of his right to elect to take compensation from his employer or to proceed against the defendant herein for the damages, and that he had no knowledge that he was allowed to make any such election and that he had not had the advice of an attorney and was in such a mental state, as a result of said accident, as not to be able to make a rational decision, or to understand the nature of the instrument he signed. In further reply, plaintiff alleged that, although the Industrial Commission had made an order allowing him compensation, no part of the same had ever been paid to or received by him, and that within a very few days after said order by the Industrial Commission, allowing plaintiff compensation as aforesaid, was made, it was set aside and the application for compensation was dismissed on petition of the plaintiff herein, Thereafter, on the 14th day of May, 1920, the case was tried to a Jury and a verdict returned for the...