DeShazer v. National Biscuit Co.

• Citation: 165 P.2d 816,196 Okla. 458,1946 OK 35
• Decision Date: 05 February 1946
• Docket Number: 31910.
• Parties: DeSHAZER v. NATIONAL BISCUIT CO. et al.
• Court: Supreme Court of Oklahoma

165 P.2d 816

196 Okla. 458, 1946 OK 35

DeSHAZER v. NATIONAL BISCUIT CO. et al.

No. 31910.

Supreme Court of Oklahoma

February 5, 1946

Original proceeding by James Mackill DeShazer to review an order of the State Industrial Commission denying petitioner an award of compensation under the Workmen's Compensation Act against the National Biscuit Company.

Petition denied, and order affirmed.

Syllabus by the Court.

1. The provisions of 85 O.S.1941, § 44 of the Workmen's Compensation Act provide the procedure to be taken and rights of employer and employee when a workman entitled to compensation under the act is injured by the negligence or wrong of another not in the same employ. The duty imposed on an injured workman thereunder may however, in certain circumstances, be waived by the employer and insurance carrier.

2. Where the injured employee compromises and fully settles with the third party causing the injury, without the approval or consent of Industrial Commission, and employer has not waived the duty imposed by 85 O.S.1941 § 44, an order of the Industrial Commission denying an award will be affirmed.

R. O Swimmer and Chas. D. Scales, both of Oklahoma City, for petitioner.

Clayton B. Pierce and Fred M. Mock, both of Oklahoma City, and Randell S. Cobb, Atty. Gen., for respondents.

DAVISON Justice.

This is an original proceeding brought by James Mackill DeShazer, hereinafter called petitioner, to review an order of the State Industrial Commission denying an award against the National Biscuit Company, hereinafter called respondent.

Petitioner on March 17, 1944, while in the employ of the respondent was stacking boxes of crackers in a freight car. The Missouri-Kansas & Texas Railroad Company, in switching operations, caused the boxes and a gate, which petitioner was using to hold the boxes in place, to fall upon him, and petitioner was injured.

Employee's first notice of injury and claim for compensation was filed with the Industrial Commission on April 6, 1944. On April 18 1944 the petitioner in consideration of $650 paid by the railroad company executed a full compromise settlement of all claims, demands or causes of actions against the railroad company and the respondent by reason of the injury caused by 'rough handling of said railroad company's yard engine No. 13 of box car' in which petitioner was working. The railroad company by the instrument also agreed to pay doctor and hospital expenses therein enumerated.

The matter was thereafter heard by the Industrial Commission and was defended by the respondent on the theory that claimant had made a full and complete settlement with the railroad company without the approval or consent of respondent or of the Industrial Commission as provided for under 85 O.S.1941 § 44. Evidence was introduced as to the cause of the injury. Petitioner testified to receipt of $650, paid exclusively by the railroad company, and further testified to the execution of the settlement instrument as being voluntary on his part and not having been forced or influenced by the respondent. The commission had not approved the settlement.

The state Industrial Commission entered its order of June 2, 1944 finding the petitioner sustained an accidental personal injury arising out of and in the course of his employment on March 17, 1944 and that said injury was caused by the negligence of another not in the same employment and 'on April 18, 1944 petitioner without the approval of this commission and without the consent of respondent, compromised and settled with the Missouri-Kansas-Texas Railroad Company, the third party aforesaid, for the sum of $650. and released said railroad company from any further liability for said injury and that claimant having so elected is not entitled to pursue his cause in this commission and an award should be denied.' The order was affirmed and adopted by the commission en banc.

The facts of this case and the rights of the parties are governed by 85 O.S.1941 § 44, herewith quoted: 'If a workman entitled to compensation under this act be injured by the negligence or wrong of another not in the same employ, such injured workman shall, before any suit or claim under this act, elect whether to take compensation under this act, or to pursue his remedy against such other. Such election shall be evidenced in such manner as the Commission may by rule or regulation prescribe. If he elects to take compensation under this act, the cause of action against such other shall be assigned to the insurance carrier liable for the payment of such compensation, and if he elects to proceed against such other person or insurance carrier, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this act for such case. The compromise of any such cause of action by the workman at any amount less than the compensation provided for by this act shall be made only with the written approval of the Commission, and otherwise with the written approval of the person or insurance carrier liable to pay the same.'

The Workmen's Compensation Act and this statute in particular was the subject of interpretation in Parkhill Truck Co. v. Wilson, 190 Okl. 473, 125 P.2d 203, 206, wherein the rights and liabilities of persons falling within its provisions are set forth:

'* * * Since a greater responsibility was placed, by said act, upon those conducting hazardous employments, for the benefit of their injured employes than that placed upon such employers under the common law, the Legislature made provision therein for the protection of employers and their insurance carriers operating within its purview. * * *

'It is apparent that the...