Beck v. Davis

• Citation: 175 Okla. 623,1936 OK 104,54 P.2d 371
• Decision Date: 04 February 1936
• Docket Number: Case Number: 26469
• Parties: BECK v. DAVIS et al.
• Court: Oklahoma Supreme Court

1936 OK 104

54 P.2d 371

175 Okla. 623

BECK v. DAVIS et al.

Case Number: 26469

Supreme Court of Oklahoma

Decided: February 4, 1936

Syllabus

¶0 1. EVIDENCE - Presumptions as to Law of Sister State.

In absence of proof to the contrary, the law of a sister state will be presumed to be the same as the law of the forum.

2. MASTER AND SERVANT - Workmen's Compensation Law of State Without Extraterritorial Application.

The Workmen's Compensation Law of this state has no extraterritorial application.

3. SAME - State Industrial Commission Clothed With Jurisdiction When Injury Occurs Within State.

Under the provisions of the Workmen's Compensation Act, the State Industrial Commission has jurisdiction when the injury occurs within the state of Oklahoma. Associated Indemnity Corporation v. Landers, 159 Okla. 190, 14 P.2d 950.

4. SAME - Jurisdiction not Dependent on Where Contract of Employment Was Made or Injured Employee's Place of Residence.

Jurisdiction of the State Industrial Commission is not dependent upon where the contract of employment was made or the place of residence of the injured employee. Associated Indemnity Corporation v. Landers, 759 Okla. 190, 14 P.2d 950.

5. SAME - Mere Filling of Claim by Employee With Foreign Tribunal not Election of Remedy Precluding Recourse to Remedy Provided in State.

In the absence of a showing of some benefit resulting therefrom, or some detriment caused to his employer thereby, the mere filing of a chain with a foreign tribunal will not be deemed such an election as will preclude the maintenance of an action before the tribunal provided for that purpose by this state.

6. SAME - Finding of 90 Per Cent Loss of Use of Arm Held Justified.

Where an injury inflicted upon an employee is so severe that it results in the loss of the use of an arm from the shoulder down, a finding by the commission of 90 per cent. loss of the use of such arm is justified.

7. SAME - Industrial Commission Without Jurisdiction to Construe Contract Rights Between Parties to Insurance Policy.

The State Industrial Commission Without jurisdiction to construe contract rights between the parties to an insurance policy.

Original action in the Supreme Court by O.V. Beck, as petitioner, seeking a review and vacation of an award made by the State Industrial Commission in favor of Walter Davis. Order and award affirmed.

Suits & Disney, for petitioner.

W.P. Morrison and Ralph Schaller, for respondents.

PER CURIAM.

¶1 This is an original proceeding in this court, wherein O.V. Beck, as petitioner, seeks the review and vacation of an award made by the State Industrial Commission in favor of the respondent, Walter Davis. The parties will hereinafter be referred to as petitioner and respondent.

¶2 The record before us presents substantially the following state of facts: The petitioner and respondent were residents of the state of Texas; the petitioner was engaged in drilling and lease operations both in Texas and in Oklahoma, and in connection therewith carried general compensation insurance with the Traders & General Insurance Company of Dallas, Tex., and with the State Insurance Fund of Oklahoma in connection with his lease operations in Oklahoma. The respondent entered the employ of the petitioner at Nocona, Tex., and worked for a time in Texas, and was subsequently transferred to Oklahoma. While working as a roughneck on drilling operations near Oscar, Okla., respondent received the injury for which compensation was awarded. The accident was reported to the industrial Accident Board of Texas. A claim blank was furnished respondent and he admits that he filled this out and returned it to the Texas board. Just when this was done the record does not disclose, but apparently it happened shortly after the occurrence of the accident.

¶3 However this may be, on January 8, 1935, respondent filed employee's first notice of injury and claim for compensation with the State Industrial Commission of Oklahoma. Therein he alleged that he had sustained an accidental injury on December 18, 1934, while in the employ of the petitioner and engaged in a hazardous business, as defined by the Workmen's Compensation Act of this state, and sought compensation.

¶4 The commission gave notices and set the matter for hearing and held a hearing thereon on February 6, 1935. The petitioner and respondent appeared at this hearing both in person and by their attorneys. The petitioner and the State Insurance Fund filed an answer denying liability. In the proceeding had before the commission, its jurisdiction was challenged on the ground that prior thereto the Industrial Accident Board of Texas had acquired jurisdiction of the cause. No evidence was offered to show whether the claim filed with the Texas board was prior in time to the claim filed with the Industrial Commission of this state. Nor was there any evidence offered to show that any proceedings had been had before said board, or that respondent had sought or obtained any relief therefrom. On the contrary, the respondent, while admitting the filing of the claim, denied any intention of prosecuting it in Texas, and declared that he had elected to proceed under the laws of Oklahoma and before its tribunal, and that he had abandoned any claim in Texas. This was not disputed, and thereupon the State Industrial Commission assumed jurisdiction in the premises and heard the evidence offered by the respective parties.

¶5 Subsequently, on March 5, 1935, the commission made an award in favor of the respondent granting him compensation for a temporary total disability sustained as a result of said accidental injury. The petitioner prosecuted no appeal from this award, but permitted it to become final, and subsequently paid the award in full. On March 6, 1935, the respondent here filed a motion requesting the Industrial Commission to make petitioner's general insurance carrier, to wit, Traders & General Insurance Company, of Dallas, Tex., a party to the proceedings before the commission. This motion, however, was overruled and denied on April 18, 1935, and no exceptions or appeal taken therefrom. On May 8, 1935, the petitioner filed with the commission form 16, and therein asserted that the respondent had reached his maximum recovery from the injury, and requested the commission to grant a hearing for the purpose of determining the percentage of permanent disability, if any, which respondent had sustained by reason of his injury. Pursuant to this request of petitioner, notice was given to the interested parties and a hearing held by the commission on May 28, 1935, thereon. At this hearing the petitioner appeared in his own behalf, and respondent appeared in person and by his attorney. The testimony before the commission was confined to a determination of the nature, extent, permanency, and degree of the injury sustained by the respondent.

¶6 The medical testimony as offered by both parties was in substantial accord with reference to the actual details of the injury, but in disagreement as to the degree and extent of the permanent injury resulting. Dr. H.A. Calvert, on behalf of the respondent, testified that in his opinion respondent had sustained a total loss of the use of his left hand and a 90 per cent. loss of the use of his entire left arm, whereas Dr. W.K. West, on the part of the petitioner, gave it as his opinion that respondent's injury would not exceed 75 per cent. permanent loss of use of his left arm. The testimony as to the details of the injury showed that respondent had sustained the destruction of his index and middle fingers, and had had an amputation between the wrist and the knuckles; that the little finger was wholly useless and the thumb practically so on account of loss of flexion. Upon the testimony thus presented, the cause was submitted by both parties, and on June 1, 1935, the commission entered the award which we are now called upon to review. The pertinent portions of this award are as follows:

"1. That on the 18th day of December, 1934, the claimant was in the employment of said respondent and engaged in a hazardous occupation subject to and covered by the provisions of the Workmen's Compensation Law, and that on said date sustained an accidental injury, arising out of and in the course of his employment, consisting of an injury to the left arm.

"2. That the average daily wage of the claimant at the time of said accidental injury was $5.

"3. That by reason of said injury the claimant was temporarily totally disabled from December 18, 1934, to May 7, 1935, or for a total of 19 weeks beyond the five-day waiting period, for which he has been paid compensation at the rate of $18 per week or the total sum of $342.

"4. That by reason of said accidental injury the claimant has sustained 90 per cent. permanent partial loss of the use of the left arm.

"Upon consideration of the foregoing facts: The commission is of the opinion that the claimant is entitled to 225 weeks' compensation at the rate of $18 per week or the sum of $4,050, to be paid in a lump sum on account of 90 per cent. permanent partial loss of use of the left arm.

"It is therefore ordered: That within 15 days from this date, the respondent or insurance carrier pay to the claimant the sum of $4,050, or 225 weeks' compensation at the rate of $18 per week, on account of 90 per cent. permanent partial loss of the use of claimant's left arm, and respondent and insurance carrier to pay all authorized and reasonable medical, hospital and doctor bills incurred by reason of said accidental injury."

¶7 On June 18, 1935, the petitioner employed present counsel, and they immediately filed a motion to vacate said award and to make Traders & General Insurance Company, of Dallas, Tex., a party respondent to the action before the commission. A hearing on this motion and application was had by the commission on June 25, 1935, and overruled and denied in an order made June 26, 1935.

¶8 The petitioner presents seven assignments of error,...