Fidelity & Cas. Co. v. Baker

• Decision Date: 31 January 1933
• Docket Number: 23684.
• Citation: 18 P.2d 894,162 Okla. 10,1933 OK 41
• Parties: FIDELITY & CASUALTY CO. v. BAKER et al.
• Court: Oklahoma Supreme Court

18 P.2d 894

162 Okla. 10, 1933 OK 41

FIDELITY & CASUALTY CO. v. BAKER et al.

No. 23684.

Supreme Court of Oklahoma

January 31, 1933

Syllabus by the Court.

1. Where there is no evidence to support a material fact in issue before the State Industrial Commission, it then becomes a question of law which, being properly presented, will be determined by this court. In all cases appealed from the commission the court will review the record to the extent of ascertaining whether, under the Compensation Act (St. 1931, § 13348 et seq.), a legal liability is shown.

2. In the absence of any statute to the contrary, an employer and insurance carrier may enter into separate contracts of insurance covering separate operations, where the distinction so attempted is reasonable and easy of ascertainment.

3. Where an insurance carrier through its attorney of record enters its appearance before the Industrial Commission and participates in the proceedings, but before a final award is made, and in the absence of circumstances constituting estoppel, and where it also affirmatively appears from the record that the claimant's position has not been changed by such appearance, it may object to the jurisdiction of the commission on the ground that there is no contract of insurance between the employer and such insurance carrier.

4. Where the record conclusively shows that no contract of insurance exists between the insurance carrier and employer it is error for the commission to make an award against such insurance carrier.

Original action by the Fidelity & Casualty Company to review an award of the State Industrial Commission in favor of P. D. Baker an employee of the Tedray Oil Company.

Award vacated in so far as applicable to petitioner, and sustained in other respects.

Green & Farmer, of Tulsa, for petitioner.

J Berry King, Atty. Gen., and C. R. Nixon and F. C. Swindell, both of Tulsa, for respondents.

BAYLESS J.

This appeal is by Fidelity & Casualty Company, a corporation, hereinafter called petitioner, from an order of the State Industrial Commission requiring it, as insurance carrier for the Tedray Oil Company, hereinafter called employer, to pay the compensation awarded P. D. Baker, hereinafter called employee, for an accidental injury sustained in a hazardous occupation. The evidence was ample to sustain an award in favor of the employee and against the employer, and neither of them appealed. The brief of petitioner presents but one issue.

We will state so much of the facts as are necessary to make plain this issue. The employer owns or operates several oil and gas leases, one being located near Kellyville, Okl., and one near Skiatook, Okl., whereon the accidental injury was sustained by the employee. C. H. Sweet, an officer of the Central National Bank of Tulsa, Okl., later consolidated with the Exchange National Bank of Tulsa, was trustee for the employer for the lease near Kellyville, under a mortgage held by the banks and pursuant to an oral agreement between the employer, the banks, and creditors. It is not clear what were his powers or duties under this agreement, but it is certain his trusteeship was limited to the one lease. C. H. Sweet, trustee, procured a policy of workmen's compensation insurance from the petitioner, limited by its terms to the operation of the lease near Kellyville and especially excluding drilling. It does not appear that the employer carried any workmen's compensation insurance in its own name. The employee was injured April 7, 1931, while working with a drilling machine on the lease near Skiatook, Okl. A report of the accidental injury was filed by him with the State Industrial Commission on July 29, 1931, naming the employer as above, and the petitioner as the insurance carrier. A hearing "to determine liability and extent of disability" was scheduled at Tulsa, Okl., January 4, 1932, which hearing was continued to February 2, 1932, at which time the employee appeared with his attorney, and the employer and petitioner appeared by their attorney. The hearing was begun and continued to and closed on February 4, 1932. In all of these proceedings the defense by the employer and petitioner was joint, but in reality was actually conducted by the petitioner's attorney. The employer, prior to the hearing, furnished medical attention, and both petitioner and employer tendered medical attention and an operation to the employee at the close of the hearing February 4th. On February 22, 1932, petitioner filed a verified motion to dismiss the claim as to it because its contract of insurance only applied to the operations of C. H. Sweet, trustee, on the lease near Kellyville, Okl., and it had never intended to extend its protection to the operations of the employer elsewhere, nor had it received payrolls covering any other operations or premium therefor. No pleading was filed in response to this motion. This motion was heard at Tulsa, Okl., April 12, 1932, pursuant to a notice specifying that the hearing was "continued from Tulsa docket of Feb. 2, 1931, to take further testimony," at which time the petitioner introduced testimony of witnesses and the contract of insurance. The testimony of the attorney for petitioner as to his authority to appear for petitioner at the previous hearings is somewhat contradictory. The employer introduced no evidence. The employee introduced no evidence but cross-examined the witnesses of petitioner. We believe, after reading the record and his brief, that he relied entirely upon the previous conduct of the petitioner as an admission of its liability and submission to the jurisdiction of the court, or an estoppel to raise the issue at this period of the hearing. The only order of the commission in connection with this whole proceeding is dated April 26, 1932. It makes no finding upon the motion to dismiss, but orders the employer, or petitioner as the insurance carrier, to pay the award made therein.

The sole complaint of the petitioner may be summed up as follows: The State Industrial Commission was without authority of law to bind it by the award in this case. It may be said here that petitioner bases its attack on both the evidence and the law.

This court has on previous occasions defined the reasons for the origin of workmen's compensation laws, the remedial effect which they should be given by interpretation, and made plain the operation of the law in this state. The employee cites cases by this court to the effect that "a party who voluntarily acquiesces in, or ratifies, either partially or in toto, a judgment against him, cannot appeal from it." We find no Oklahoma case exactly in point.

The relationship of employer and employee is contractual....