State Ins. Fund v. Smith

• Decision Date: 07 March 1939
• Docket Number: Case Number: 28710
• Citation: 1939 OK 141,184 Okla. 552,88 P.2d 895
• Parties: STATE INSURANCE FUND v. SMITH et al.
• Court: Oklahoma Supreme Court

1939 OK 141

88 P.2d 895

184 Okla. 552

STATE INSURANCE FUND v. SMITH et al.

Case Number: 28710

Supreme Court of Oklahoma

Decided: March 7, 1939

Syllabus

¶0 1. WORKMEN'S COMPENSATION--Filing of Claim With Industrial Commission by Employee Subsequently Adjudged Incompetent and Represented by Guardian Held Sufficient Election of Remedy.

Where a claim for compensation has been filed with the State Industrial Commission by an injured workman, who is thereafter adjudged an incompetent, the subsequent prosecution of such claim by the guardian of such incompetent constitutes a sufficient election on the part of such incompetent to take compensation under the Workmen's Compensation Act (O. S. 1931, sec. 13348, et seq., as amended, 8.5 Okla. St. Ann. sec. 1, et seq.) rather than to pursue his remedy against a third person by whose negligence or wrong the injury was sustained.

2. SAME--Assignment by Claimant of Cause of Action Against Tortfeasor--Failure to Assign Same Excused by Insurance Carrier's Apparent Unwillingness to Accept Same.

Neither the statute nor the rules of the State Industrial Commission prescribe or fix a definite time within which an injured workman electing to take compensation shall assign his cause of action against a third person causing the injury; and where the insurance carrier denies liability for the injury and does not demand the assignment, but shows an unwillingness to accept it, the. claimant is excused from making it. Chickasha Motor Co. v. industrial Commission, 174 Okla. 304, 50 P.2d 308.

3. SAME--Determination of Average Weekly Wage as Basis for Computing Compensation.

The average weekly wage of an injured employee at the time of the injury is the basis upon which to compute compensation and is to be determined in the manner directed by the appropriate subdivision of section 13355, O. S. 1931, 85 Okla. St. Ann. sec. 21.

Original proceeding in Supreme Court brought by the State Insurance Fund to obtain a review of an award made by the State Industrial Commission in favor of W. G. Smith, in incompetent. Award sustained.

Rolland O. Wilson, for petitioner.

John T. Cooper and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 The State Insurance Fund, as petitioner, has instituted this proceeding to obtain a review of an award made by the State Industrial Commission on May 26, 1938, and amended June 20, 1938, in favor of W. H. Smith, respondent. The parties will hereafter be referred to as petitioner and respondent. The respondent, while in the employ of his brother, L. D. Smith, sustained an accidental personal injury on March 16, 1935, and as a result thereof was rendered mentally incompetent and physically unable to transact any business. On September 10, 1936, the respondent, through his attorney, filed with the State Industrial Commission a claim for compensation, and the petitioner as a defense thereto pleaded the bar of the statute in limitation of such claim (section 13367, O. S. 1931, as amended by section 4, chapter 29, S. L. 1933). The respondent thereupon invoked the provisions of section 13399, O. S. 1931, 85 Okla. St. Ann. see. 106, to excuse his failure to file the claim within one year after the injury. On February 27, 1937, the respondent was adjudged to be an incompetent and a guardian was appointed to represent him. Thereafter, on April 26, 1937, the State Industrial Commission, after hearing the evidence offered by the respective parties, denied his claim to compensation for the assigned reason thatthe respondent was engaged in a nonhazardous employment at the time he was injured. The guardian thereupon instituted a proceeding in this court to obtain a review of the aforesaid order, and upon consideration thereof we vacated the said order, with directions. See Smith v. State Industrial Commission, 182 Okla. 433, 78 P.2d 288. The opinion in said cause was promulgated on March 8, 1938, but the issuance of the mandate was delayed pending disposition of the petition for rehearing, which was denied April 5, 1938, and application for leave to file second petition for rehearing, which was denied April 17, 1938. Upon receipt of the mandate the State Industrial Commission set aside its former order and reinstated the cause upon its docket. The petitioner thereupon undertook to defend the action independently of the employer rather than in his behalf and to this end filed with the commission what is termed its separate answer, wherein it asserted nonliability upon eleven grounds. The respondent was likewise permitted to amend his claim so as to show that it was also being prosecuted by his guardian and also with respect to the item of average daily wage. Upon the conclusion of further hearings the commission found, in substance, that the respondent had sustained an accidental personal injury compensable under the Workmen's Compensation Act (O. S. 1931, sec. 13348 et seq., as amended, 85 Okla. St. Ann. sec. 1 et seq.) and which had resulted in a total permanent disability, and that his average daily wage was $5, and thereupon awarded compensation at the rate of $18 per week for a period not to exceed 500 weeks. This order was amended on June 20, 1938, in certain respects which are not material. The petitioner in its original brief discusses only one proposition, which, in substance, is that the respondent was injured by the negligence or wrong of another not in the same employment and that hence he had to make an election in the manner required by section 13368, O. S. 1931, 85 Okla. St. Ann. sec. 44, which provides:

"If a workman entitled

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