Parkhill Truck Co. v. Adm'r

• Decision Date: 17 October 1933
• Docket Number: Case Number: 24239
• Citation: 1933 OK 539,166 Okla. 280,27 P.2d 333
• Parties: PARKHILL TRUCK CO. v. EMERY Adm'r et al
• Court: Oklahoma Supreme Court

1933 OK 539

27 P.2d 333

166 Okla. 280

PARKHILL TRUCK CO. v. EMERY Adm'r et al

Case Number: 24239

Supreme Court of Oklahoma

Decided: October 17, 1933

Syllabus

¶0 1. Master and Servant--Workmen's Compensation--Right to Unaccrued Compensation Terminated by Death of Claimant.

The right, under the Workmen's Compensation Law, to compensation not yet accrued, to which the beneficiary would become entitled, is terminated by his death and does not pass to his personal representatives or heirs. Rounds v. State Industrial Com., 157 Okla. 145, 11 P.2d 479.

2. Same--Industrial Commission Without Authority to Revive Award in Name of Personal Representative of Deceased Claimant.

The State Industrial Commission is without power or authority to revive an award in the name of the personal representative of a deceased claimant as to unmatured installments thereof.

3. Same--Nunc Pro Tunc Order of Industrial Commission Correcting Order of Record--Proof Required.

An order "nunc pro tunc" of the State Industrial Commission purporting to correct or amend an order of record theretofore made is without authority at law where there is no proof by affidavit or otherwise that the order as thus corrected or amended was in fact the order made by the Commission.

4. Same--Order Commuting Periodical Payments Into Lump Sum Payment not Sustained Where Order Made in View of Impending Death of Claimant.

While the State Industrial Commission is vested with a wide discretion in the matter of commuting periodical payments of an award into a lump sum payment in the interest of justice, an order commuting such payments will not be sustained where the record affirmatively shows that such order was made in view of the impending death of the claimant and does not promote substantial justice to all the parties involved.

Original action in the Supreme Court by the Parkhill Truck Company et al. for review of orders of the State Industrial Commission in favor of A. L. Emery, administrator of estate of Wm. V. Morton et al. Reversed and remanded.

Pierce, Follens & Rucker, for petitioners.

Holley & Holley and A. L. Emery, for respondents.

RILEY, C. J.

¶1 This is an original proceeding to review certain orders and decisions of the State Industrial Commission. An award was made in favor of William V. Morton and against petitioners for compensation at the rate of $ 9 per week for 500 weeks, less eight weeks theretofore paid, for permanent total disability to be computed from January 27, 1930. The award was made February 18, 1932. Thereafter Maryland Casualty Company made and delivered its check payable to claimant in the sum of $ 576, as compensation, computed to May 15, 1932. The claimant indorsed said check to the secretary of the State Industrial Commission, apparently in order that the Commission might fix attorney's fees in favor of the attorneys for claimant. Thereafter, on April 4, 1932, the matter of the disposition of the check or its proceeds coming on before the Commission, an order was made which, after reciting the above facts, reads as follows:

"It is, therefore, ordered: That within 15 days the said secretary, Chester Napps, pay to the firm of Holley & Holley, the sum of $ 100, and to A. L. Emery, the sum of $ 100 and to the claimant the sum of $ 376, and should take receipts from all parties and file the same with the Commission, evidencing compliance with the terms of this order."

¶2 On May 25, 1932, the Commission made an order commuting the last 39 weeks' compensation of the award of February 18, 1932, to a lump sum, without discount, payable within 15 days. On May 26, 1932, claimant, Wm. V. Morton, died. A. L. Emery, having been appointed administrator of the estate of Morton, on May 30, 1932, filed a suggestion of the death of Morton, and an application to revive the award in the name of the administrator and for an order for the payment of an additional $ 351 for funeral expenses, reciting therein that "This Commission did on May 25, 1932, order the payment of $ 351 for payment of funeral expenses, but that another sum of the same amount will be necessary."

¶3 On June 24, 1932, the insurance carrier filed a motion to vacate the order of May 25, 1932, because of the death of claimant before payment of the 39 weeks' compensation became due under said order, and on the same day filed its notice of suspension of payment of the award as of May 27, 1932, because of the death of the claimant, William V. Morton, and the resulting change of condition, and asked for a hearing and an order approving discontinuance of payment.

¶4 The cause was set for hearing apparently on the motion to vacate and the motion for an order approving suspension of payments, and on the motion of the administrator for revivor of the award.

¶5 Although nothing was said in the motion to revive concerning the cause of the death of the claimant, hearings were had and most of the evidence taken went to the cause of the death of the claimant, tending to show that he died from causes other than the accidental injuries for which compensation was awarded.

¶6 On October 4, 1932, and before the hearing was finally commenced, Holley & Holley and A. L. Emery filed what was denominated "Motion for an Order Nunc Pro Tunc." This motion was supported by the affidavit of A. L. Emery, as follows:

"Motion for an Order Nunc Pro Tunc.

"Now come Holley & Holley and A. L. Emery and move to amend the order of this Honorable Commission made and entered on April 4, 1932, by inserting in said order the following language after the words 'opinion' in the sixteenth line, to wit:

"'Counsel for claimant are entitled to ten per cent. attorney fees' and by adding at the very end of said order the following language: 'and that the Maryland Casualty Company pay, within 15 days to Holley & Holley, the sum of $ 175, and to A. L. Emery the sum of $ 175 and deduct said sums from the end of said award,' for the reasons which will appear in the following affidavits.

"Holley & Holley,

"A. L. Emery,

"Attorneys for claimant.

"State of Oklahoma, Okmulgee County, ss.

"I, A. L. Emery, being duly sworn, say:

"That on April 4, 1932, in the above entitled matter a hearing was had on an allowance of attorneys fees, on a division of said fees between the attorneys, and on whether a check of the Maryland Casualty Company for $ 576 should be held up pending the appeal of the Hartford Accident & Indemnity Company. At said hearing, all three Commissioners were present, the claimant was present in person, G. A. Holley, E. D. Holley, and affiant.

"That at said time, Holley & Holley were opposed to the claimant accepting the said check and were objecting to the Commission allowing the claimant to accept said check; while the affiant favored accepting the check on account of the physical condition of claimant that he might die at any time. The Commission found on account of the physical condition of claimant, that the check ought to be cashed. Judge Doyle stated at that time that the lawyers ought to be paid something out of the check. The question was discussed then between the Commissioners how much of attorney fee should be allowed; and it was determined at that time that the sum of ten per cent. should be allowed. After evidence was taken and arguments made by counsel, the Commission decided that the fee should be divided equally one-half to Holley & Holley, and the other half to A. L. Emery; and the Commission further decided that the claimant should pay $ 100 out of the check to Holley & Holley and $ 100 to A. L. Emery. "A few days later, a copy of the order, with check, was received by the affiant, but the secretary omitted to insert therein the amount of the attorney fee which was allowed."

"The Commission finds that the claimant died on May 26, 1932, from an independent cause not due to the injury for which compensation had been awarded; and that the award ought to be revived in the name of A. L. Emery, as administrator of the estate of the deceased for the use and benefit of the dependents or persons entitled thereto.

"It is therefore ordered: That the award rendered herein be and the same is hereby revived in the name of A. L. Emery as the administrator of the estate of Wm. V. Morton, deceased, for the use and benefit of the dependents or persons entitled thereto."

¶7 On the same date a further finding and order was made as follows:

"The Commission finds that the claimant died on the 26th day of May, 1932, and that the order of May 25, 1932, is a valid and subsisting order and that the same ought not to be vacated, and said order has never been appealed from.

"It is therefore ordered: That the said motion of the respondents and its insurance carrier to vacate and set aside the order of the Commission dated May 25, 1932, is hereby overruled and denied, and said respondent and its insurance carrier are hereby ordered to comply with the order of May 25, 1932, forthwith."

¶8 This proceeding is brought to review said orders.

¶9 The first proposition presented is that the order of October 25, 1932, reviving the award in the name of A. L. Emery, as administrator of the estate of Wm. V. Morton, is contrary to the law and beyond the power of the State Industrial Commission.

¶10 It is contended that the right to compensation not yet accrued and to which the workman would be entitled is terminated by his death and does not pass to his personal representative.

¶11 The exact question was passed upon by this court in Rounds v. State Indus. Comm., 157 Okla. 145, 11 P.2d 479:

"The right to compensation not yet accrued, to which the beneficiary would become entitled, is terminated by his death, and does not pass to his personal representatives or heirs."

¶12 A somewhat similar question was passed upon by this court in Lahoma Oil Co. v. St. Indus. Comm., 71 Okla. 160, 175 P. 836; it was held:

"Where one entitled to compensation under the Workmen's Compensation Act (chapter 246, Laws 1915) secured a determination and award for permanent disability, and

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