Aetna Life Ins. Co. v. Price

ICORNEGAY, J. This is an original proceeding to review the action of the Industrial Commission with reference to making an award in this matter in favor of Dewey Price and against the petitioner, Aetna Life Insurance Company. The controversy arises over the determination of liability, not over the question of the extent of injury. The evidence in the case is conclusive that Dewey Price, the injured workman, is entitled to full compensation, the controversy here is as to who Is to pay it. The gist of the complaint of the Aetna Life Insurance Company is that it is not liable because the employer that it was insurance carrier for was not the employer of Price, claimant, at the time of the injury. Insistence is made also upon the proposition that the order of October 4, 1930, that is set out in the record, holding that the Aetna Life Insurance Company was not liable, should not have been rescinded by the Commission, which it did on notice, and a finding should not have been made by the Commission that it was liable, as is shown by the record in this case to have been made on the 15th day of January, 1931. The last order complained of is as follows: “Now, on this 15th day of January, 1931, the State Industrial Commission being regularly in session, this cause comes on for consideration on the claim of Dewey Price, claimant, for compensation for disability resulting from an accidental injury which he alleges was sustained by him on the 17rh day of September, 1929, and the Commission having considered the testimony taken at hearings had in the above-entitled cause at Bristow, Okla., February 27, 1930, at Oklahoma City, Okla., on March 12, April 18, and September 2, 1930, before Commissioner F. L. Roblin to determine liability and extent of disability, at which hearings claimant appeared in person and by his attorneys, Laux & Robinson, the respondent, Pure Oil Company and the United States Fidelity & Guaranty Company being represented by W. G. Hawkinson, the respondent L. E. Alleman, as the Shrine Drilling Company being represented by Johnson & Jones, the Aetna Life Insurance Company being represented by C. B. Pierce, and the Commission having examined all the records on file in this cause, and after reviewing the testimony taken at the various hearings, and after hearing arguments of counsel at Oklahoma City, November 3, 1930, and being otherwise well and sufficiently advised in the premises, finds the following facts: “1. That, on the 17th day of September, 1929, claimant, Dewey Price, was in the employment of the respondent, L. E. Alle-man, and engaged in a hazardous employment covered by and subject to the provisions of the Workmen’s Compensation Act; that said work was the drilling of an oil and gas well for the respondent L. E. Alleman. operating as the Shrine Drilling Company, for the respondent, the Pure Oil Company. “2. That the insurance carrier, or said respondent, the Pure Oil Company, had prior to said date issued a standard Workmen’s Compensation insurance policy, covering any liability of said respondent, under the Workmen’s Compensation Law, and that the Aetna Life Insurance Company was the insurance carrier of the respondent, L. E. Alleman, operating as the Shrine Drilling Company; that the insurance carrier of the said respondent, L. E. Alleman, operating as the Shrine Drilling Company, deny that said claimant. Dewey Price, was an employee of the said respondent, L. E. Alleman, operating as the Shrine Drilling Company on the 17th day of September, 1929, or on any other date. “3. That, in the course of and arising out of his employment, said claimant, on the 17th day of September, 1929, sustained an accidental personal injury, as a result of which said claimant is permanently and totally disabled from the performance of ordinary manual labor. “4. That the average wage of the claimant at the time of said accidental personal injury was $11 per day. “5. That the claimant was not at the time of said accidental injury 'in the employment of the respondent, PI. A. Dilley. “The Commission is of the opinion by rea *53 son of the aforesaid facts: That respondent, L. E. Alleman, operating as the Shrine Drilling Company, is primarily liable, and that the Aetna Life Insurance Company, said respondent’s insurance carrier, is secondarily liable for compensation to claimant at the rate of $18 per week, beginning September 22, 1929, and continuing for a period of 500 weeks. “The Commission is further of the opinion : That the Pure Oil Company and its insurance carrier, the United States Fidelity & Guaranty Company, should be relieved of liability in this cause. “It is, therefore, considered and ordered: That within 15 days from this date, the respondent, L. E. Alleman, operating as the Shrine Drilling Company, or his insurance carrier, the Aetna Life Insurance Company, pay to the claimant, Dewey Price, the sum of $1,233, the same being 68 weeks and three days waiting period, computed at the rate of $18 per week, from the 22nd day of September, 1929, to January 15, 1931, and to pay compensation from this date at the rate of $18 per week, until the aggregate of 500 weeks have been paid, and also pay all medical expenses incurred by claimant by reason of said aforementioned accidental injury. “It is further ordered: That a credit on this award be given in the sum of $600, heretofore paid said claimant under the stipulation entered into by and between all parties herein, to be deducted from the accumulated compensation now due the claimant. “It is further ordered: That the Pure Oil Company and its insurance carrier, United States Fidelity and Guaranty Company, be and the same are hereby relieved of liability in said cause. “It is further ordered: That within 30 days from this date, the respondent, L. E. Alleman, operating as the Shrine Drilling Company, or its insurance carrier, the Aetna Life Insurance Company, file with the Commission proper receipts or other reports evidencing compliance with the terms of this order.” The power to make rules is vested in the Industrial Commission by statute. They made an effort to comply with their rules, and the showing made for a setting aside of the original order and putting In another appears to have been satisfactory to the Commission. The statute specially applicable, as we think, here, is found 'in the act of the Legislature of 1923, Session Laws of 1923, chapter 61, at page 128, as amended, reading as follows: “Jurisdiction. “Section. 13. • Section 7325, Compiled Oklahoma Statutes 1921, is hereby amended to read as follows: “ ‘Section 7325. The power and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders relating thereto, if, in its opinion it may be justified, including the right to require physical examinations as provided for in section 7293, and subject to the same penalties for refusal ; provided, that upon petition filed by the employer or insurance carrier, and the injured employee, the Commission shall acquire jurisdiction to consider the proposition of whether or not a final settlement may be had between the parties presenting such petition. The Commission is authorized and empowered to have a full hearing on the petition, and to take testimony of physicians and others relating to the permanency or probable permanency of the injury, and to take such other testimony relevant to the subject-matter of such petition ,as the Commission may require. The Commission shall have authority to consider such petition and to dismiss the same without a hearing if, in Its judgment, the same should not be set for hearing; the expenses of such hearing or investigation, including necessary medical examinations, shall be paid by the employer or insurance carrier, and such- expenses may be included in the final award. If the Commission decides it is for the best interest of both parties to said petition that a final award be made, a decision shall be rendered accordingly, and the Commission may make an award that shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall decide the case should not be finally settled at the time of the hearing, the petition shall be dismissed without prejudice to either party, and the Commission shall have the same jurisdiction over the matter as if said petition had not been filed. The same rights of appeal shall exist from the decision rendered under such petition as is provided for appeals in other cases before the Commission; provided, there shall be no appeal allowed from an order of the Commission disnrss'ing such petition as provided in this Section.” We have examined this entire record, and to say that the order of the 15th of January. 1931, fixing the responsibility in this case, is not sustained by sufficient competent evidence would be to ignore the evidence in this case. The great weight of evidence 'in this case is that the injured workman, Dewey Prie-\ was in the employ of L. E. Alleman, doing business as the Shrine Drilling Company, at the time of the injury. There was some evidence that at one time, when the well was started, a man by the name of Dilley was interested. Other persons were also interested. The people for whom the well was being drilled were interested. The supply company, which was furnishing tools *54 and' other things and desiring the contract to be filled so that it would have money paid it, was also interested. Dilley, the man in charge of the wells, ceased to have anything to do with the operation sometime in July before the accident in September. This is testified to by Alle-man, and Dilley, by Price, and by everybody concerned in getting the well down, and there is nothing to show that Dilley was interested in the actual performance of the work at the time of the injury, or that Price was in his employ, except some things, which were explained by the testimony, which might give rise to an inference to the contrary. We are, therefore, not at liberty to disturb this finding, and the award of the Industrial Commission is accordingly affirmed. LESTER, C. J., CLARK, V. C. J., and HEENER and McNEILL, JJ., concur. SWIN-DALL and ANDREWS, JJ., dissent. CULLI-SON, J., not participating. RILEY, J., absent.