Rex Truck Lines, Inc. v. Simms

• Decision Date: 02 March 1965
• Docket Number: S,No. 41316,No. 2,2,41316
• Citation: 401 P.2d 520
• Parties: REX TRUCK LINES, INC., a Corporation, Petitioner, v. The Honorable Robert D. SIMMS, Judge of the District Court of Tulsa County, Divisiontate of Oklahoma, Respondent.
• Court: Oklahoma Supreme Court

Page 520

401 P.2d 520

1965 OK 43

REX TRUCK LINES, INC., a Corporation, Petitioner, v. The Honorable Robert D. SIMMS, Judge of the District Court of Tulsa County, Division No. 2, State of Oklahoma, Respondent.

No. 41316.

Supreme Court of Oklahoma.

March 2, 1965.

Rehearing Denied Paril 20, 1965.

Syllabus by the Court

As between two courts having concurrent jurisdiction of the subject matter, the court first acquiring jurisdiction will retain jurisdiction to the exclusion of the other.

Application for Writ of Prohibition by Rex Truck Lines, Inc., to prevent the respondent, Judge of the District Court of Tulsa County, Oklahoma, from proceeding further in a certain action now pending in said court. Writ granted in part.

Donald Church, Tulsa, for petitioner.

Houston, Klein & Davidson, Tulsa, for respondent.

JACKSON, Vice Chief Justice.

This is an application for Writ of Prohibition by Rex Truck Lines, Inc., to prevent the respondent, Judge of the District Court of Tulsa County, Oklahoma, from proceeding further in a certain action now pending in said court. It involves an alleged conflict of jurisdiction between the State Industrial Court and the District Court of Tulsa County.

It appears that no Nov. 4, 1963, Robert Shaw was killed in a truck accident arising out of and in the course of his admittedly hazardous employment with Rex Truck Lines. On Dec. 2, 1963, his widow, Dorothy Dubinsky Shaw, filed a death benefit claim with the State Industrial Court in which she listed herself and her four minor children as the dependent heirs at law of Shaw. On Dec. 10, 1963, the Mid-Cotinent Casualty Co., named as employer's insurer in the death benefit claim, filed a separate answer specifically denying that it was the workmen's compensation insurer of Rex Truck Lines on Nov. 4, 1963, and specifically denying any liability to the dependent heirs at law of Shaw under the death benefit provisions of the Workmen's Compensation Law.

On Feb. 24, 1964, without permission of the State Industrial Court or notice to the claimant, Mid-Continent withdrew its answer denying insurance coverage. On the same day a new answer was filed for both Rex Truck Lines and Mid-Continent Casualty Company in which Mid-Continent's insurance coverage of Rex Truck Lines was specifically admitted. On March 5, 1964, claimant filed objections to the withdrawal without notice or permission of the first Mid-Continent answer. It appears that no hearing has been had on these objections.

On March 17, 1964, the widow began an action for damages in the District Court of Tulsa County in the nature of a wrongful death action against Rex Truck Lines. In her petition she pleaded, among other things, that her husband's death resulted from an injury arising out of and in the course of his hazardous employment with Rex Truck Lines; that Rex Truck Lines had failed to 'secure the payment of compensation' as required by 85 O.S.1961, § 11; and that the employer was therefore precluded, by the terms of 85 O.S.1961, § 12, from pleading or proving as a defense that Shaw's death was due to the negligence of a fellow servant, or that Shaw assumed the risk of his employment, or was guilty of contributory negligence. On April 5, 1964, Rex Truck Lines, defendant in the District court case, filed a Special Appearance, Motion to Quash and Denial of Jurisdiction and Venue, which was overruled. Thereafter, While preserving its objection to the jurisdiction of the Court, Rex Truck Lines filed an answer pleading, among other things, the defenses of contributory negligence, assumption of risk, and the fellow servant doctrine. It also pleaded in effect that it did 'secure the payment of compensation' to Shaw's dependent heirs by procuring workmen's compensation insurance coverage which was in force at the time of the accident, as provided in 85 O.S.1961, § 61(a).

To this answer, the plaintiff widow filed a reply in which she detailed charges of the existence of a plot or conspiracy on the part of Rex Truck Lines, Mid-Continent Casualty Company, and another insurance company, for the purpose of denying to the widow the right to proceed against the employer in the district court in an action for damages.

It also appears that prior to the filing of the application for Writ of Prohibition in this court, the respondent district judge had, on application of the plaintiff widow, restrained Rex Truck Lines, its attorney, agents, servants or employees, from further participation in the State Industrial Court death benefit proceeding.

From the above summary of the pertinent pleadings in the two cases, it is apparent that if, on Nov. 4, 1963, Rex Truck Lines did have workmen's compensation insurance coverage, the remedy of Shaw's widow is confined to the death benefit claim before the State Industrial Court, which would have exclusive jurisdiction. If, on the other hand, there was no such coverage, she would have the right to elect, under 85 O.S. 1961, § 12, to proceed in an action for damages in the district court, which would have exclusive jurisdiction.

There is no suggestion that Rex Truck Lines was a self-insurer under 85 O.S.1961, § 61(d).

In its brief in support of the application for Writ of Prohibition, employer argues generally that prohibition is a proper remedy in this case, that the State Industrial Court has exclusive jurisdiction in this case to determine whether there was insurance coverage, and that the district court does not have jurisdiction to proceed in the widow's action for damages.

In support of the proposition that exclusive jurisdiction to determine the insurance coverage question lies with the State Industrial dustrial Court, employer cites Tri-State Casualty Ins. Co. v. Bowen, 189 Okl. 97, 113 P.2d 981; Young v. Postal Mutual Indemnity Co., 189 Okl, 187, 115 P.2d 139; Barney v. Brown and Sons, Inc., v. Savage, 208 Okl. 668, 258 P.2d 183; Hughes v. State Industrial Commission, Okl., 273 P.2d 450; and Traders and General Insurance Co. v. Abel, Okl., 344 P.2d 585. These cases were all original proceedings in this court to review an award theretofore made or denied by the State Industrial Court. In all of them, there was, in one form or another, a dispute as to whether the insurance company was or was not liable for the payment of an award sought by claimant or actually made by the State Industrial Court, with the insurance company denying liability and the claimant or employer seeking to enforce it. These were not actions in which a Writ of Prohibition was sought from this court, and they did not involve any...