Terminal v. Vineyard

• Citation: 143 P.2d 610,193 Okla. 388,1943 OK 358
• Decision Date: 02 November 1943
• Docket Number: Case Number: 29352
• Parties: CONSOLIDATED MOTOR FREIGHT TERMINAL et al. v. VINEYARD et al.
• Court: Oklahoma Supreme Court

1943 OK 358

143 P.2d 610

193 Okla. 388

CONSOLIDATED MOTOR FREIGHT TERMINAL et al. v. VINEYARD et al.

Case Number: 29352

Supreme Court of Oklahoma

Decided: November 02, 1943

Syllabus

¶0 WORKMEN'S COMPENSATION--Jurisdictional issue of whether employer's business was within coverage of Compensation Law determined by final order awarding temporary total disability and not open to inquiry in subsequent proceeding to determine extent of permanent partial disability.

In a proceeding to discontinue the payment of compensation for temporary total disability, the respondent challenged the jurisdiction of the Industrial Commission in the particular proceeding, specifically asserting that respondent was not engaged in a hazardous business, and that claimant was not engaged in a hazardous employment, within the provisions of the Workmen's Compensation Law, and thereupon the Industrial Commission took evidence on said issue and-entered a finding that the business of respondent and the employment of claimant came within the provisions of said law, and thereupon entered an award for temporary total disability, from which order no appeal was perfected, and said order and award became final: thereafter claimant filed an application for the commission to determine the extent of permanent partial disability, and respondent again challenged on the same grounds the jurisdiction of the commission to enter an award. in favor of claimant. Held, that the finding of the commission on the jurisdictional issue in the first proceeding was final and conclusive.

Original action in the Supreme Court by Consolidated Motor Freight Terminal et al. to review an award of State Industrial Commission in favor of Ernest Clayton Vineyard. Award sustained.

Butler & Rinehart, of Oklahoma City, for petitioners.

Fred M. Hammer and Major J. Parmenter, both of Oklahoma City, for respondents.

OSBORN, J.

¶1 This is an original action to review an award of the State Industrial Commission entered in favor of Ernest Clayton Vineyard and against Consolidated Motor Freight Terminal and Casualty Reciprocal Exchange, its insurance carrier, on June 27, 1939, for permanent partial disability under "other cases" paragraph, 85 O. S. 1941, § 22.

¶2 It appears that respondent Vineyard was injured in the course of his employment on September 22, 1938, and thereafter, on September 28, 1938, his employer, Consolidated Motor Freight Terminal, filed with the State Industrial Commission employer's first notice of injury showing the furnishing by said employer of medical attendance and that the employee still had not returned to work. Thereafter, on November 1, 1938, employee filed his first notice of injury and claim for compensation and showing that he had been discharged by the physician furnished by the employer as able to return to work on October 22, 1938, but therein he claimed permanent partial disability. On November 5, 1938, petitioners filed a motion to discontinue temporary total compensation, theretofore voluntarily paid to claimant, wherein petitioners specifically challenged the jurisdiction of the commission to enter an award in favor of claimant, as follows:

"Respondent and insurance carrier would further show' to the Industrial Commission that the business and enterprise being carried forward is that incidental and necessary to classified carriers for hire in the State of Oklahoma, as approved by the Corporation Commission of the State of Oklahoma, and for this reason the Industrial Commission has no jurisdiction to award claimant further compensation herein, either for temporary total or permanent partial disability."

¶3 Thereafter, numerous hearings were had by the commission relating to the character of the employment of claimant, the nature of the business of petitioner Consolidated Motor Freight Terminal, and the nature and extent of the injury of claimant, and after three or four intermediate orders, which were vacated upon motion, the commission, on June 3, 1939, entered an award for compensation for temporary total disability, wherein it made the specific finding "that on September 22, 1938, the claimant was in the employ of the respondent herein engaged in a hazardous occupation subject to and covered by the provisions of the Workmen's Compensation Law...." From this order no appeal was perfected, and the same became final. Thereafter, on June 7, 1939, respondent filed an application to determine the extent of permanent partial disability, and pursuant thereto a hearing was held and testimony introduced, and on June 27, 1939, an award was entered for permanent partial disability and the rate of compensation was fixed at $8 per week. The present proceeding is to review the latter award.

¶4 In the latter hearing the petitioners again challenged the jurisdiction of the commission to make and enter an award of compensation, predicating said challenge upon the same ground as was the challenge to the jurisdiction upon the hearing for temporary total disability. Specifically, they contend that the Industrial Commission was without jurisdiction to enter an award for the reason that the respondent was not engaged in a hazardous occupation as defined by the Workmen's Compensation Law, in that petitioner was not engaged in the "transfer and storage" business, citing Adams Union Truck Terminal v. Keeshen, 165 Okla. 151, 25 P. 2d 624; Tulsa Terminal & Storage Co. v. Thomas, 162 Okla. 5, 18 P. 2d 891; Gypsy Oil Co. v. Keys et al., 147 Okla. 148, 295 P. 612; Holland v. Byers Drilling Co., 167 Okla. 1, 27 P. 2d 591; Veazey Drug Co. v. Bruza, 169 Okla. 418, 37 P. 2d 294. It is insisted herein that we should review the evidence introduced on the application to determine temporary total disability and declare, as a matter of law, that the petitioner was not engaged in a hazardous occupation.

¶5 On the other hand, it is contended by respondent (claimant) that since no appeal was perfected from the order determining the jurisdiction of the commission on the application for temporary total disability, said order became final, and the question of jurisdiction of the commission became res judicata, and that in this proceeding the jurisdiction of the commission is not open to further attack.

¶6 Petitioners rely upon certain authorities which, they contend, outline the sole conditions under which a contention with reference to a jurisdictional issue may be foreclosed in a former proceeding. These authorities adhere to the rule that when the jurisdiction of the commission depends upon a question of fact, and the commission in making a previous award had before it competent information to establish the jurisdictional fact, either in the form of an admission of fact, stipulation of fact, or testimony of witnesses, it is deemed to have inquired into its jurisdiction and determined the question of fact upon which the same depends, and thereafter in a proceeding to award further compensation, the jurisdictional fact is not open to inquiry. Rorabaugh-Brown Dry Goods Co. v. Matthews, 162 Okla. 283, 20 P. 2d 141; Hardy Sanitarium v. De Hart, 164 Okla. 29, 22 P. 2d 379; City of Duncan v. Ray, 164 Okla. 205, 23 P. 2d 694; Spivey & McGill v. Nixon, 163 Okla. 278, 21 P. 2d 1049; Tulsa Terminal Storage & Transfer Co. v. Thomas, 162 Okla. 5, 18 P. 2d 891; J. B. Herd Hdw. Co. v. Kirby, 160 Okla. 2, 15 P. 2d 823; Pinkston Hdw. Co. v. Hart, 172 Okla. 566, 46 P. 2d 501; Sterling Milk Products Co. v. Underwood, 167 Okla. 361, 29 P. 2d 937; Hannah v. Highway Commission, 172 Okla. 221, 45 P. 2d 53. It is argued that since there was no admission of fact, stipulation of fact, or testimony of witnesses before the Industrial Commission sufficient to sustain the finding of the commission that the business of petitioner was within the coverage of the Compensation Law, the finding was not determinative or conclusive and that the question of jurisdiction might be raised at any subsequent stage of the proceedings.

¶7 The rule announced in the above-cited cases is applicable only where there is no positive finding as to the essential jurisdictional facts. Neither the rule nor the converse thereof is applicable where all of the facts with reference to the nature of the employment were before the commission and a positive finding was made with reference to such facts. In the case of Union Indemnity Co. v. Saling, 166 Okla. 133, 26 P. 2d 217, it was said:

"The issue of jurisdiction could be raised before the commission at any time unless such issue had been previously adjudicated. Thus, we are of the opinion that the commission may, by virtue of its continuing jurisdiction, at any time entertain a proceeding attacking its jurisdiction. If the jurisdictional question was subject to be and was adjudicated formerly, then the commission, upon determining those issues, must dismiss the proceeding; if it was not formerly adjudicated, the commission must pass upon it."

¶8 In the case of Skelly Oil Co. v. Goodwin, 168 Okla. 141, 32 P. 2d 67, it was said:

"Section 13363, O. S. 1931 (85 O. S. 1941 §29), provides that the award or decision of the commission shall be final and conclusive upon all questions within its jurisdiction between the parties unless within 30 days an action is commenced in the Supreme Court to review such award or decision. It has been repeatedly held that, considering the above section together with sections 13362 and 13391, O. S. 1931 (85 O. S. 1941 §§ 28 and 84), the commission has a continuing power and jurisdiction to review its award on the ground of a change of condition only, and the award is final and conclusive on all questions within its jurisdiction unless proceedings are commenced in this court within 30 days to review the award or decision. American Oil & Ref. Co. v. Kincannon, 154 Okla. 129, 3 P. 2d 877; Marland Prod. Co. v. Hogan, 146 Okla. 220, 294 P. 115; Roxana Pet. Corp. v. Hornberger, 150 Okla. 257, 1 P. 2d 393; Bedford-Carthage Stone Co. v. Industrial Commission, 119 Okla. 231, 249

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