*1 occupancy predecessor adverse of their
title, began when united possession,
with claimants’ own had extend- period requisite 15-year
ed for the when the
present January suit was judgment
The trial court’s rests therefore legally impermissible inferences drawn undisputed facts. It stand. cannot Appeals’ opinion
The Court of is accord-
ingly judgment vacated and trial court’s
reversed with directions to enter plaintiffs. favor of the
LAVENDER, J., IRWIN, J., C. V. C.
WILLIAMS, HODGES, SIMMS, DOOLIN HARGRAVE, JJ., concur.
BARNES, J., dissents. COMPANY,
PRYSE MONUMENT Corporation, Petitioner,
Oklahoma
The DISTRICT COURT OF KAY COUN-
TY, Oklahoma, State of and the Honora- Doggett, Judge
ble Lowell District Court, Respondents.
said
No. 52821.
Supreme Court of Oklahoma.
May *2 II, Northcutt, Gardner, North-
John J. Gardner, Clark, North- cutt, Hron & Raley, cutt, petitioner. City, for Ponca Hermanson, Holmes, T. Brian Kenneth E. Holmes, City, Ponca Phipps, & Johnson respondents. ALA, Justice:
OP worker, injured job May on the A Industrial proceeded in the State an award his uninsured Court1 was within the employer whose business purview Compensation the Workmen’s The claim was held one- Act.2 pro- In this statute of limitations.3 ceeding prohibition seeks prosecution of subse- against the worker’s suit, quent district court damages in years4, to recover within two injury. tort the same on-the-job sustains who One a business which employed in injury while though it impermissibly uninsured remains Compensa by Workmen’s governed reme given been two distinct tion Act has single, statutori dies for vindication of ly-conferred right One of these to recover. Industrial Court by claim the State court action tort district (with negligence5 some defenses based on The two being employer).6 denied to the Gardner, Compensation Ice v. § 1. Now effective 5. 85 O.S.1971 Workers’ (1938); Eagle Creek Oil Co. 7-1-78. Gregston, P. 339 Law, Compensation 2. Now Workers’ effective 7-1-78. Richardson, Marrs 85 O.S.1971 Gardner, Ice v. 85 O.S.1971 supra note 95(3). 4. 12 O.S.1971 § alternative, separate, Company,
remedies available are
W. R. Johnston &
cognizable in
mutually
exclusive and
differ-
principle
we settled this
They
governed by
ent forums.7
are
dis-
clear and unmistakable terms. Therein we
tinctly varying theories and measures of
said that
“
recovery.
very
These
characteristics com-
‘Where a
has elected one of
“coexisting
bine to make the two remedies
two
the enforcement of
remedies for
*3
distinguished
inconsistent”
from
right,
is barred
such action
“concurrent
pursuit
and consistent”.8 The
statute, he
is bound
his election and
preclude
prosecu-
of one will
simultaneous
cannot thereafter resort to the other rem-
tion of the
pursuing
other. Were suits
both
edy for which a different
limitation is
time,
”
pending
remedies
at the same
one of
provided.’
(emphasis supplied)
them,
election,
at claimant’s
would be abat-
holding
Neither our
in Williams v. Okl.
able as vexatious.9 The abatement’s incho-
Co., Okl.,
Stockyards
Nat.
ate bar becomes absolute and conclusive
(1978) nor
conceptual underpinnings
will
when the
once chosen has been
afford
semblance of validity to the
pursued
point
to a
of conclusion.10 That
notion that the cited decision stands as au-
point is reached at
first
suit’s termina-
thority
allowing
subsequent
a
district
tion whether by recovery or its denial.
every
court action in
prior
where the
Waiver
preclude
election will
the claim-
“compensation claim failed other than on
vexing
ant from
the employer with a second
the merits
.
.
. ”. Williams dealt with
suit.
remedy
Once a
is chosen and then
a worker
was
employ-
who
not
hazardous
pursued
conclusion,
point
of no re-
only
ment and hence
remedy
had
turn
although
is reached
there has been no
choose. We held he could institute his dis-
satisfaction,
vindication,
much less
year
trict court action within one
after the
right.11
elements,
Three
essential
all
order which held there was no industrial
here,
present
preclu-
must
to make
coincide
jurisdiction over his claim. Williams is easi-
through
sion
by prior
waiver
election of
ly distinguishable
present
from the
case.
applicable: (a)
remedies
two or more reme-
Although
procedural
he had but one
course
dies must
(b)
be in existence
the available
single right,
timely
for vindication of his
he
(c)
remedies must be inconsistent
choice of
remedy.
invoked the unavailable
Because
one remedy
pursuit
and its
to conclusion
court,
timely
wrong
he was
in the
he
must be made with knowledge of alterna-
purview
himself within the
preclusion
tives that are
of 12
available.12
100,
enlarges regular
effective even
though the chosen action or O.S.1971
limi-
suit
year
failed because it had not
been
tations
an additional
when an ac-
brought.
In Assessment Bond Service v.
tion fails “otherwise than on the merits”.13
Calhoun, Okl.,
Haggard
Kay
v.
294
10. H. L. Hutton &
v. District
P.2d
837
Co.
Court of
(1956);
Wheeler,
Corp.
Calhoun,
County, supra
Haggard
McAlester
v.
205 Okl.
note
v.
(1951);
supra
239 P.2d
411
Dixie Cab Com
note
see cases
in note 7.
cited
pany
Sanders, Okl.,
(1955).
v.
Kay
v. District Court
H. L. Hutton & Co.
Kay
County, supra
H. L. Hutton
v.
& Co. District Court of
note 8.
Okl.,
County,
(1965); Hag-
P.2d
Calhoun,
gard
supra
v.
note 7.
Dudley
King,
285 P.2d
(1955); H. L. Hutton & Co. v. District Court of
may
Kay County, supra
A9.
suit
be abated because another
note 8.
pending
par
where both are between the same
sought
ties and relief
is for the same event
provide
13. The terms of 12
O.S.1971
transaction. Vexatiousness follows from mul
pertinent part:
tiplicity of suits. Oklahoma Press Pub. Co. v.
time,
“If
action be commenced
due
Gulager,
plaintiff be
and a
thereon for the
Myers
Garland,
reversed,
or if the
fail in such action
(1927).
”
Where full relief
be obtained
(em-
than
otherwise
the merits
.
.
.
actions,
Phillips
in both
one will be abated.
added)
phasis
be commenced
new action
Barker, Okl.,
within one
after failure of the initial one.
Chaos, caprice
law.
timely,
compensation
workers’
was Here,
the worker’s claim
inevita-
was
would
initially
pronouncements
he
chose
though the forum
hoc
ad
Moreover, he had an
any departure.
and available.
bly
from
follow
“
* *
*
remedies.
unimpaired
choice of
two
spells
procedure
It
Williams is “wide
short,
of the mark”.
rule
difference between
much of the
caprice.
whim or
law and rule
Stead-
by prior
preclusion
Neither can
safe-
procedural
to strict
fast adherence
by invoking the familiar
by avoided
election
assurance that
there
guards is our main
bars
of limitations
principle that
statute
”
* *
justice
law.
equal
will be
under
itself.
only
and not
[Emphasis
worker is termed
left here
added]16
right”
mere
unen
at common
“a
—an
respondents
prohibiting
Let the writ issue
that has been detached
forceable
cause No. C—77—
further
proceeding
from
remedy.14 Until
reunited with
the District
docket of
90PC
*4
available,
right” is
remedy, “mere
viable
Kay County.
take
capable of vindication.
It would
act
waiver of the em
some
or
affirmative
J.,
LAVENDER,
J., IRWIN, V.
and
C.
C.
the
ployer
remedy
the
lost to
to resurrect
WILLIAMS,
HARGRAVE,
and
BARNES
worker here.15
JJ., concur.
in
court action
The worker’s district
JJ.,
DOOLIN,
HODGES,
dis-
and
SIMMS
tort
waiver
negligent
stands
sent.
through prior
election of another
conclusive
here,
though it
remedy. The result
harsh
DOOLIN, Justice, dissenting:
tracks,
appear,
fidelity,
the beat
with
succinctly
by the
facts
stated
are
precedent.
path
long-established
en
of
majority.
litigation process
fairness
in
Fundamental
unap-
We are to decide what effect an
except within a frame
cannot be afforded
pealed judgment,
rendered in the Industrial
No
orderly
area of the
procedure.
work of
Court,
injured employee’s right
to
an
exemption
to
from the
has on
lay
law
judg-
12.1 The
proceed
the
under 85
range of its basic strictures —not even
O.S.1971 §
original
resort to the courts
enforcement of a claim.
for
14.Jus memm is the
Latin term
English
arguments.”
to a “mere or
We
which old
referred
do not need to settle these
jus
right”
proprietatis
is
bare
[footnotes omitted]
—the
—which
possession or
the
of
without either
even
Payment
provision
attention
or
of medical
Bract,
23;
possession.
2
fol.
Bl.Comm.
85
would be effective
toll limitations under
Gaines,
Stolfa v.
140
283 P.
Smedley
§
O.S.1971
v. State Industrial
Praescriptio Temporis
Opala,
567 -570
(1977).
Failure to
Prescriptive
in
and its
Easements
Relation to
of remedies
the defense of election
assert
Law, 7,
Anglo-American
the
Tulsa L.J. 107-109
right”
“mere
would be effective to reunite
with
(1971).
Roberts,
remedy.
its district court
Miller v.
Anglo-
aptly
the
Justice Jackson
described
(1929).
1106
concept
in
Secu-
American
of limitations
Chase
Donaldson,
Corporation
rities
325 U.S.
Refugee
Joint Anti-Fascist
Committee
1137, 1142,
65 S.Ct.
The Industrial
in the case at
Court
bar
upon
procedural
denied relief
the
or narrow
recently
More
in Williams v. Oklahoma
grounds
of
Stockyards,
(Okl.
the one
statute of limita- National
577 P.2d
employee,
Keith,
representatives
(1924);
legal
or
if
3. Clark v.
Okl.
his
death
P. 613
injury,
Millinery
Hilliker,
results from
maintain
the
an action
Gaier & Stroh
Co. v.
52 Okl.
damages
(1915)
in
Munsingwear,
the courts
on
account of such
ment, action injured workman’s tort the analogy pre- majority uses the of The of limitation. was not barred a statute titles, an invention or scription in land than action otherwise The industrial failed equity relieving of of result the doctrines points cer majority its The out on merits. law), as a ham- the common (harshness of distinctions Williams tain admitted statutory right cre- purely to defeat a mer deny the instant authority it finds as Compensation Act. Act under the Our ated they are invented. suggest claim. I protect from relieve and passed was in Williams does not bottom line and rule “recognized rights” the harshness the the of a claim in turn on the timeliness majori- analogy working man.6 or unavailable will-of-the-wisp eva- conceptual is a ty adjudicate on the merits. the failure to gay quest a for “the motes sive as good why it more If is Williams people a sunbeam”. in the to claimant to file a late claim fatal Lastly importantly, I perhaps most and court, wrong proceed than opinion flies in the face of decid- believe court on a basis? both cases state; standing of this long and case law ed claimant makes choice of forums and is re- Compensation Act that Worker’s adjudication there is no both cases given and be liberal medial nature should merits; neither tort action barred. thus construction. Also the case cited rhetoric, majority opinion Shorn v. W. R. Johnston Assessment Bond Service an claims of procedures saddles the Co., (Okl.1956). This case & harsh, oppressive injured with a workman effect made dealt with the election permitted rigid not heretofore blanket (lien holders) in a the bond holders declara- weal, public Adams the Act and tory in the Federal judgment action filed *6 52, 938, Co., Iten Biscuit Courts, validity was estab- where bonds’ lished. After the conclusion of the bond decision, property real owners I dissent. District to an action in State Court (lien claim) of the bond remove the cloud I am to state Justice authorized holders owners. This held bond in the views herein ex- concurs SIMMS having elected had choice of remedies pressed. pursue pursuing were the other. elections, under suggest
I the effect of decision,
the bond made matters affect- liens,
ing special enforcement of assessment law, majority opinion. view tional go that statutes limitation 5. See footnote No. 14 of the relies Justice Jackson matters of not to destruction Donaldson, Corporation v. Chase Securities U.S. rights. logic The abstract fundamental 89 L.Ed. S.Ct. rights and re- distinction between substantive medial authority prescription time procedural rights not be clear- legis- comparable is lative and to limitations contained cut, concept it has been found workable pages at statutes. However point up be- the real and valid difference reported Securi- 1636of case Chase stability prime in which tween rules Donaldson, Corporation ties Jackson Justice flexibility importance is a and those in which points out: important more value.” Holt, Campbell U.S. “This [115 supra. see 6. 85 O.S.1971 footnote adopted L.Ed. as a 483] 6 S.'Ct. hypothesis, working as a matter of constitu-