151 P.2d 920 | Okla. | 1944
This is an original proceeding brought by petitioner, George G. Schmidt, and his insurance carrier, the State Insurance Fund, to review an order of revivor made in behalf of the beneficiaries, under 85 O. S. 1941 § 41, of Walter Moncrief, hereinafter called claimant, reviving the award for permanent total disability.
On the 7th day of January, 1942, claimant filed his first notice of injury and claim for compensation stating that he injured his back and hip on December 18, 1941, while employed as a carpenter for the petitioner, George G. Schmidt. On the 9th day of February, 1942, the State Industrial Commission found that claimant sustained an accidental injury arising out of and in the course of his employment and ordered payment of total temporary disability at the rate of $13.46 per week not to exceed 300 weeks. On the 30th day of April, 1942, there was a further order for payment of temporary partial disability and on the 25th day of July, 1942, an award was entered for permanent total disability. This award became final. On January 1, 1943, claimant died, and on January 4, 1943, the respondents filed a motion to revive the award in the name of the beneficiaries designated by 85 O.S. 1941 § 41[
Petitioners urge that the question of whether the award can be revived is one of jurisdiction, and being a jurisdictional issue cannot be allowed to rest upon the finding of the State Industrial Commission (McKeever Drilling Co. v. Egbert,
As opposed to this, respondents contend that under the following quoted language of section 41, supra, ". . . in case of death of claimant, at any time before satisfaction or payment of the total award made, the same shall not abate, but shall be revived in favor of the person or persons determined by the commission to be entitled thereto . . .", an award that has become final but which has not been paid in full does not abate on the death of the claimant, irrespective of the cause of his death.
Petitioners cite 85 O.S. 1941 § 121[
It must be kept in mind that the two above-quoted portions of section 41, supra, deal with two different situations. The first above-quoted portion of said section 41 follows language which makes a final award a vested right as "a final adjudicated obligation" (although it may be modified under certain conditions during the lifetime of the claimant) and thus deals with a situation where the award existed prior to claimant's death. The fact that the Legislature has seen fit to make this award, this vested adjudicated obligation, survive to the statutory beneficiaries following the death of the claimant, irrespective of the cause of the death of the claimant, does not violate the above-cited constitutional provision. Being a finally adjudicated obligation, it could not have any effect upon or in any wise limit any cause of action for death brought under 12 O.S. 1941 §§ 1051-1054[12-1051-1054]. Two reasons exist for this. First, if the award is made and becomes final and is fully paid or, as stated in section 41, supra, is not fully paid, and death results from the compensable injury, the award is analogous to a judgment that may have been obtained in an action for personal injuries and paid, or be subject to collection, and death then resulted from the injuries, for we have said that in such an instance the cause of action that comes into existence at the death in favor of those named in section 1053, supra, is a new cause of action unaffected by the prior judgment. St. L. S. F. Ry. Co. v. Goode,
The second status dealt with in section 41, supra, relates to the second above-quoted portion where the death of the claimant intervenes before an award can be made. In such a case, from the plain language of the quoted provision, the Legislature, in a cautious effort to avoid clashing with the constitutional provision above quoted, required the commission to determine whether the injury upon which the claimant's claim for compensation rested in any wise contributed to his death, and withdrew the jurisdiction of the commission if it did, but allowed the commission to retain full jurisdiction to make an award in favor of the statutory beneficiaries if the death occurred from causes other than the injury. Such an award would be analogous to a judgment during life for personal injuries, spoken of in the preceding paragraph. Such an award would then assume the same status as the one first above mentioned, and, since the facts upon which it depended for its adjudication did not relate to the facts out of which the claimant's death arose, it could not affect any cause of action that might exist under 12 O.S. 1941 §§ 1051-1054[12-1051-1054].
We are of the opinion that the contention of the petitioners with respect to the unconstitutionality of section 41, supra, is without merit.
We are of the opinion that the contention *380 of the respondents that they are entitled to an order reviving an award, which was made and became final during the lifetime of the claimant, irrespective of the cause of his death, and that it is not necessary to weigh the evidence to determine whether the tuberculosis from which he admittedly died was in any wise effected by his compensable injury, is correct. Under the first above quoted portion of section 41, it is necessary only to show a final award, the death of the claimant, and an unpaid balance.
We are not unaware of the language of Indian Terr. Ill. Oil Co. v. Pettyjohn,
The order appealed from is affirmed.
CORN, C. J., and RILEY, OSBORN, WELCH, DAVISON, and ARNOLD, JJ., concur. GIBSON, V.C.J., and HURST, J., concur in conclusion.