Stinchcomb v. Dodson
| Decision Date | 07 April 1942 |
| Docket Number | Case Number: 30095 |
| Citation | 126 P.2d 257,190 Okla. 643,1942 OK 141 |
| Parties | STINCHCOMB v. DODSON et al. |
| Court | Oklahoma Supreme Court |
¶0 WORKMEN'S COMPENSATION--Insurance carrier who paid award of workmen's compensation had right of action for indemnity against tort-feasor whose negligence caused injuries and such right was independent of statutory provision for assignment of cause of action to insurance carrier.
Where the negligence of defendant resulted in injuries to one subject to the provisions of the Workmen's Compensation Law who received an award of compensation for disability resulting from the injuries, which award was paid by the insurance carrier, of the employer of the injured workman, said insurance carrier may maintain an action in its own name against defendant for indemnity, which right is independent, of the provisions of 85 O. S. 1941 § 44, relating to assignments of such causes of action to the insurance carrier.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by Bruce Dodson, Attorney in Fact for Subscribers at Casualty Reciprocal Exchange, et al. against Lee Stinchcomb. Judgment for plaintiffs, and defendant appeals. Affirmed.
V. E. Stinchcomb, of Oklahoma City, for plaintiff in error.
R. B. McCabe, Harlan Deupree, and Leslie D. Ringer, all of Oklahoma City, for defendants in error.
¶1 This action was instituted in the district court of Oklahoma county by Clarence S. Crain against Lee Stinchcomb, wherein it was sought to recover damages for personal injuries sustained in an automobile collision which plaintiff alleged resulted from the negligence of the defendant. Crain, being an employee of the Colonial Baking Company, filed a claim before the State Industrial Commission and was awarded compensation for the injuries sustained in the collision. The Casualty Reciprocal Exchange, the insurance carrier for the Colonial Baking Company, paid the award and filed its petition in the action originated by the plaintiff Crain seeking, as against defendant, a recovery of the sum of $2,007, being the amount of the award of the Industrial Commission paid to Crain by said insurance carrier. The cause proceeded to trial before a jury and a verdict was returned in favor of said insurance carrier. From a judgment thereon, defendant has appealed.
¶2 No contention is made that the evidence is insufficient to sustain the finding of the jury that the collision and resultant injuries to Crain were caused by the negligence of defendant. As the sole ground for reversal, defendant contends that the insurance carrier is without right to maintain this action. 85 O. S. 1941 § 44 provides that if a workman entitled to compensation under the Workmen's Compensation Law be injured by the negligence or wrong of another, not in the same employ, the injured workman shall elect whether to take compensation under the act or to pursue his remedy against the other; that if he elects to take compensation the cause of action shall be assigned to the insurance carrier liable for the payment of such compensation.
¶3 It is shown that the insurance carrier in the instant case is an association transacting the business of insurance on what is known as the "reciprocal or inter-insurance plan." Said company is an association of subscribers organized for the purpose of exchanging indemnity. The Colonial Baking Company, the employer of the injured employee herein, was a subscriber of said exchange. It is shown that the offices of Bruce Dodson and Ralph Dodson, Kansas City, Mo,, were selected as the place at which such indemnity was exchanged, and said parties were appointed, jointly and severally, attorneys for the subscribers with power to transact the business of the exchange.
¶4 Immediately after the payment of the award of the Industrial Commission to Crain, an assignment of the cause of action was executed by Crain, but it appears that through inadvertence the assignment was not made to the Casualty Reciprocal Exchange, the insurance carrier, but to Bruce Dodson & Company. The defendant urges that such an assignment is not sufficient to authorize the prosecution of this action by the insurance carrier. We find it unnecessary to determine this question. It does not appear that the trial court was of the view that the right of the insurance carrier to maintain the action was dependent upon the assignment, in that said court, without objection on the part of defendant, submitted the following instruction:
"You are further instructed that it is shown by the evidence in this case that under the provisions of the Workmen's Compensation Law of the State of Oklahoma, Clarence S. Crain applied to the Industrial Commission for relief because of his injuries and obtained an award through the Industrial Commission which award these plaintiffs were obligated to pay and plaintiffs have succeeded to any claim or right of action which the said Clarence S. Crain may have had against the defendant and the plaintiffs are entitled to recover in this action from the defendant whatever damages, if any, would have been due from said defendants to said Clarence S. Crain, were he now, himself, suing herein up to the amount of money shown to have been paid to Clarence S. Crain as compensation and for all sums he may have expended for medical and hospital care."
¶5 In the case of Staples v. Central Surety & Insurance Corporation (C. C. A. 10th) 62 F.2d 650, a similar proposition was...
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