Pinkston Hardware Co. v. Hart

• Decision Date: 11 June 1935
• Docket Number: 25031.
• Citation: 46 P.2d 501,172 Okla. 566,1935 OK 674
• Parties: PINKSTON HARDWARE CO. et al. v. HART et al.
• Court: Oklahoma Supreme Court

46 P.2d 501

172 Okla. 566, 1935 OK 674

PINKSTON HARDWARE CO. et al. v. HART et al.

No. 25031.

Supreme Court of Oklahoma

June 11, 1935

Syllabus by the Court.

1. In an action to review an award of the State Industrial Commission which challenges the jurisdiction of the commission to make an award, where it appears that in a former action between the same parties to review a previous award, it was held that the commission had jurisdiction to make such award, and the record before the commission at the time of the making of said former award shows that there was competent information before the commission to establish the jurisdictional facts, it is deemed that the commission inquired into its jurisdiction and determined the question of fact upon which the same depends, and the jurisdictional fact is not open to inquiry in said subsequent action to review said award.

2. Decision on former action to review an award of the Industrial Commission is the "law of the case" in all subsequent stages, and will not be reviewed on second application to review an award where the facts are practically the same.

Original action by the Pinkston Hardware Company, employer, and the Travelers Insurance Company, insurer, to review an award of the State Industrial Commission granting compensation to Carl Hart, claimant.

Award sustained.

Randolph Haver, Shirk & Bridges, of Tulsa, for petitioners.

A. P Murrah, Luther Bohanon, M. F. Boddie, and J. I. Gibson, all of Oklahoma City, and Mac Q. Williamson, Atty. Gen., for respondents.

OSBORN Vice Chief Justice.

This is an original action to review an award of the State Industrial Commission in favor of Carl Hart, claimant, against the Pinkston Hardware Company and the Travelers Insurance Company, respondents.

Claimant was injured on September 10, 1930, while employed by the Pinkston Hardware Company. Certain compensation was voluntarily paid, and on June 25, 1931, a settlement was made and approved by the Industrial Commission for temporary total disability.

On October 15, 1931, a motion to reopen was filed in which it was sought to recover further compensation on the ground of a change of condition. On February 2, 1932, after hearing, an award was made for temporary total disability. The cause was reviewed by this court. On June 28, 1932, the award was sustained. Pinkston Hardware Co. v. Hart, 159 Okl 6, 12 P.2d 681, 682. In that case it was said: "The sole question presented in this case is whether or not petitioners can now question the jurisdiction of the commission to require petitioners to pay the award of February 2, 1932, on the ground that the injury was not compensable and that it did not come within the Workmen's Compensation Law. This contention of petitioners cannot at this time be raised. When the commission approved the stipulation and receipt filed with it, and neither party appealed therefrom within the thirty-day period provided by the Workmen's Compensation Law (St. 1931, § 13363), the same became binding, final, and conclusive upon the parties. Hughes Motor Co. v Thomas, 149 Okla. 16, 299 P. 176; Skelly Oil Co. v. Daniel, 154 Okl. 199, 7 P.2d 155."

An order was entered by the commission on the mandate on July 12, 1932. On February 21, 1933, respondents filed a motion to discontinue payment of compensation and to dismiss the proceeding for want of jurisdiction by the commission, which motion was overruled, on August 25, 1933. On the same date the commission made an award for permanent partial disability.

There is but one question presented, and that is whether or not the commission had jurisdiction of the subject-matter. In this connection it is contended that the Pinkston Hardware Company is a retail mercantile establishment, and not covered by the Workmen's Compensation Law. It is observed that the question of jurisdiction was likewise the sole question presented in the former appeal, and it was therein held that the commission had jurisdiction. Respondents contend that the rule announced therein has since been repudiated by the court and overruled in the cases of Great A. & P. Tea Co. v. McHan, 162 Okla. 8, 18 P.2d 875; Tulsa Terminal, Storage & Transfer Co. v. Thomas, 162 Okl. 5, 18 P.2d 891; Spivey & McGill v. Nixon, 163 Okl. 278, 21 P.2d 1049.

It is observed that the issue is identical with the issue decided by this court in the former appeal in this case. It was therein held that where a stipulation and receipt was filed and approved by the commission and neither of the parties appealed within 30 days, the same became final, and the employer and its insurance carrier could not thereafter question the jurisdiction of the commission.

In the case of Tulsa Terminal, Storage & Transfer Co. v. Thomas, supra, it appeared that a stipulation and receipt were filed on the commission's form No. 7, and it was therein contended that the question of jurisdiction could not be raised in a subsequent hearing. It was held by the court that the business of the respondent in that case was not included within the terms of the Workmen's Compensation Law, and that respondents were entitled to raise the question of jurisdiction for the reason that no evidence had been theretofore introduced to establish the jurisdictional facts in the case. In the case of Great A. & P. Tea Co. v. McHan, supra, a stipulation and receipt on the commission's form No. 7 was filed, and it was again held that the mere filing of such stipulation did not confer jurisdiction of the subject-matter on the State Industrial Commission. The case of Hughes Motor Co. v. Thomas, 149 Okl. 16, 299 P. 176, and Skelly Oil Co. v. Daniel, 154 Okl. 199, 7 P.2d 155, were not overruled by this case, but were distinguished.

In the case of Frates v. State Industrial Commission, 164 Okl. 60, 22 P.2d 905, 906, the above cases were followed. It was therein held: "It is fundamental that the commission has jurisdiction only over those business enterprises and industries specified and enumerated in the Workmen's Compensation Act. Section 13349, O. S. 1931. Whether a business enterprise or industry comes within the provisions of the act is a question of fact which must be determined affirmatively by the commission before it is vested with jurisdiction to make an order or enter an award in any case. Such issue of fact may be determined either by proof, stipulation, or admission of the employer."

In the case of Sterling Milk Products Co. v. Underwood, 167 Okl. 361, 29 P.2d 937, 938, all of the decisions on this point were reviewed, and it was...