Farmers Nat'l Grain Co. v. Gardner, Case Number: 29852

• Decision Date: 15 April 1941
• Docket Number: Case Number: 29852
• Parties: FARMERS NATIONAL GRAIN CO. et al. v. GARDNER et al.
• Court: Oklahoma Supreme Court

1941 OK 133

116 P.2d 971

189 Okla. 375

FARMERS NATIONAL GRAIN CO. et al. v. GARDNER et al.

Case Number: 29852

Supreme Court of Oklahoma

Decided: April 15, 1941

Syllabus

¶0 WORKMEN'S COMPENSATION--Order of Industrial Commission becomes final 90 days after copy mailed to claimant and his attorney though not received by claimant.

Where a copy of a final order of the State Industrial Commission was mailed to the claimant and his attorney within one day after its entry and it is admitted that in due course the attorney for the claimant received his copy, the fact that the copy mailed to the claimant was misdirected and never delivered to him would not toll the 20-day statute, section 13363, O. S. 1931, as amended, 85 Okla. St. Ann. § 29, and it became final 20 days after the order was so mailed.

Original proceeding in the Supreme Court by the Farmers National Grain Company et al. to review an award of the State Industrial Commission in favor of Lewis W. Gardner. Award vacated, with directions.

Clayton B. Pierce and Fred M. Mock, both of Oklahoma City, for petitioners.

Falkenberg & Curran, of Enid, and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 This is an original proceeding brought by the Farmers National Grain Company, employer, and the Maryland Casualty Company, insurance carrier, hereinafter referred to as petitioners, to vacate an award made to Lewis W. Gardner, respondent.

¶2 On the first day of April 1938, respondent was seriously burned when he lighted a fire with kerosene in his feed store at Quinlan, Okla. On the 16th day of February, 1939, a hearing was conducted before Peyton Ford, inspector, at Enid, Okla., following which, on July 21, 1939, the State Industrial Commission entered its order denying an award. This order was set aside on the 11th day of October, 1939, and on January 24, 1940, a further hearing was conducted, following which, on April 19, 1940, the State Industrial Commission entered its present order finding that on April 1, 1938, the respondent sustained an accidental injury arising out of and in the course of the employment with the Farmers National Grain Company, by reason of which the respondent is totally temporarily disabled. The extent of the disability is not at issue.

¶3 It is first claimed that the State Industrial Commission was without jurisdiction to vacate the order of July 21, 1939. With this contention we agree. The motion to vacate was filed September 16, 1939; following the motion to vacate, a hearing was conducted in which it was disclosed that copies of the order of July 21, 1939, were sent to the respondent and to his attorney, Willis Smith, on July 22, 1939. The copy of the order was mailed to the respondent at Quinton, Okla., whereas his home was at Quinlan. The envelope in which the order was contained was returned to the State Industrial Commission as unclaimed; and it is further disclosed by the record that this copy of the order was never delivered to the respondent. The copy of the order that was mailed at the same time to Willis Smith reached the attorney for the respondent in due course, and it is conceded that he received it within ten days after the order was entered on July 21, 1939.

¶4 Section 13363, O. S. 1931, as amended, 85 Okla. St. Ann. § 29, provides that the order is final unless a proceeding is commenced to review the order or award within 20 days after a copy is sent to the parties affected. We have been unable to find a case in point. Only one case has been cited by either party which touches the proposition of mailing...