Rounds v. State Indus. Com'n

• Decision Date: 10 May 1932
• Docket Number: 23366.
• Citation: 11 P.2d 479,157 Okla. 145,1932 OK 378
• Parties: ROUNDS v. STATE INDUSTRIAL COMMISSION et al.
• Court: Oklahoma Supreme Court

11 P.2d 479

157 Okla. 145, 1932 OK 378

ROUNDS v. STATE INDUSTRIAL COMMISSION et al.

No. 23366.

Supreme Court of Oklahoma

May 10, 1932

Syllabus by the Court.

1. Where a claimant has made a settlement for an injury received during his employment, which settlement has been accepted and approved by the Industrial Commission, and subsequently files an application before the commission to reopen the case, but dies before there is any hearing on said application, the proceeding may not after his death be revived before the commission in the name of his personal representative.

2. 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.

3. Record examined, and held sufficient to sustain the order of the Industrial Commission.

Original action by Mayme Rounds, as executrix of the last will and testament of Fred Chevalier, deceased, opposed by the Pure Oil Company and another, to review an order of the State Industrial Commission denying the motion of the petitioner to revive a proceeding for compensation, instituted by the decedent before his death, in her name as executrix.

Order affirmed.

M. C Spradling, of Tulsa, for petitioner.

West Gibson, Sherman, Davidson & Hull, of Tulsa, for respondents.

CULLISON J.

This is an original proceeding before this court to review an order of the State Industrial Commission made and entered February 5, 1932. Said order, omitting caption, is in words and figures as follows, to wit:

"Order.

Now, on this 5th day of February, 1932, the State Industrial Commission being regularly in session, this cause comes on in its regular order for consideration pursuant to hearing had at Tulsa, Oklahoma, on the 12th day of January, 1932, before Commissioner Fred H. Fannin on motion for revivor of action at which hearing, Mayme Rounds, Executrix, appeared in person and by her attorney, M. C. Spradling, the respondent and insurance carrier being represented by Preston C. West of the firm of West, Gibson, Sherman, Davidson & Hull, and the Commission, after reviewing the testimony taken in this cause, after examining all the records on file, and being otherwise well and sufficiently advised in the premises, finds:

1. That on May 10, 1929, claimant, Fred Chevalier was in the employment of the respondent, The Pure Oil Company and engaged in a hazardous occupation covered by and subject to the provisions of the Workmen's Compensation Law; that in the course of and arising out of his employment, said claimant sustained an accidental personal injury of May 10, 1929; that on August 23, 1929, claimant signed a Form 7 in the amount of $66.00; that on May 22, 1931, claimant filed an application to reopen cause and award further compensation on the ground of change of condition; that before said application was heard, and on September 25, 1931, said claimant died; that thereafter, on the 10th day of October, 1931, Mayme Rounds was duly appointed by the County Court of Tulsa County, Oklahoma, executrix of his last will and testament; that as such executrix, she filed in this cause on the 20th day of October, 1931, a motion to revive said cause in her name as executrix of the last will and testament of Fred Chevalier, deceased; that the Commission is without jurisdiction to entertain motion for revivor.

The Commission is of the Opinion: That motion to revive said cause in the name of Mayme Rounds, Executrix, should be overruled for want of jurisdiction.

It is therefore ordered: That motion to revive said cause in the name of Mayme Rounds, Executrix, be and the same is hereby overruled for the want of jurisdiction.

FHF:JC-Upon the adoption of the foregoing order the roll was called and the following voted aye: Chairman Doyle-Commissioner Fannin."

Petitioner commences this action in this court to review the foregoing order of the commission. It will be observed that there is practically no contention as to the facts in this case. The order heretofore set forth concisely states the case before this court for judicial determination.

The case at bar presents for the first time in this court the question, where it appears claimant has made a settlement for an injury received during his employment, which has been accepted and approved by the Industrial Commission, and subsequently files an application before the commission to reopen the case, but dies before there is any hearing on said application, whether or not after his death the proceeding may be revived before the commission in the name of his personal representative (viz., his executrix).

Inasmuch as the jurisdiction of the commission depends upon the terms of the Workmen's Compensation Act (Comp. St. 1921, § 7282 et seq., as amended), the question becomes one of statutory construction and effect. Since the right to compensation did not exist at common law, this court must look to the terms of the act to determine whether the right to compensation after the death of the employee exists in law. Our attention has not been called to any decision involving the point at issue herein. This court, however, has had occasion to pass upon two cases which must be considered in disposing of the case at bar.

The case of Lahoma Oil Co. et al. v. State Industrial Commission et al. (1918) 71 Okl. 160, 175 P. 836, 15 A. L. R. 817, held that where one entitled to compensation under the Oklahoma Workmen's Compensation Act secured a determination and award for permanent disability, and died before the lapse of the maximum number of payments had been made according to the terms of the award, the right to compensation under the award ceased with his death.

The case of Western Indemnity Co. v. State Industrial Commission et al. (1923) 96 Okl. 100, 219 P. 147,...