Sheehan Pipe Line Const. Co. v. State Ind. Com.

HEFNER, J. This is an original proceeding in this court brought by the Sheehan Pipe Line Construction Company and the Southern Surety Company, petitioners herein, to review an award of the Industrial Commission made in favor of J. J. Choate, the claimant herein. The claimant is, and was at the time of his injury, a resident and citizen of the state of Oklahoma. The employer is and was an Oklahoma corporation with its principal place of business at Shawnee, Okla. The claimant had been in the employ of the petitioners on a job at Shawnee. After the completion of that work, he entered into a contract in this state to perform work for the employer in the state of Kansas. While working in Kansas, he received the injury complained of, which arose out of and in the course of his employment. The only question presented by petitioners’ brief is whether the claimant, under the foregoing state of facts, may recover cpmp'ensation in this state for an injury received in a foreign state. Some of the states have an elective or optional Industrial Act, and in such states it has generally been held that the Industrial Act has an extraterritorial effect, and a claimant has been permitted to recover for injuries received in a foreign state. In some of the states the legislative act itself specifically provides for an extraterritorial effect. Was it the intention of our Legislature in adopting the Industrial Act to give it an extraterritorial effect? Our act (Comp. Stat. 1931, secs. 7282-7340, as amended) is compulsory, and is not optional as it is in some of the states. In the case of Warren City Tank & Boiler Co. v. Millham, 132 Okla. 244, 270 Pac. 85, this court, in speaking through Mr. Justice Clark, said: “This hearing was had, and the evidence taken before the referee of the Industrial Commission of Colorado, and said evidence is in the record and was considered by the Industrial Commission of Oklahoma. “Section 7316, C. O. S. 1921, provides: ‘Any investigation, inquiry or hearing with (which) the Commission is authorized to hold or undertake, may be held or taken at any place in the state by or before any Commissioner. * * *’ “This gives the Industrial Commission authority to conduct hearings at any place within the borders of this state, but does not give the Industrial Commission authority to conduct a hearing without the state.” Thei e is no provision in any of the statutes that provides that the Industrial Act shall have an extraterritorial effect, and the Warren City Case, supra, clearly indicates that it does not have such an effect. The evidence discloses that this accident happened in Kansas. Before the claimant can recover, it is incumbent upon him to bring his claim within the provisions of the act. In the absence of an express provision in the act, making the same extraterritorial in its effect, he must show a positive legislative intent that the act should operate in cases where the injury arose outside of the territorial limits of the state of Oklahoma. Since our act is mandatory and not elective, jurisdiction is based upon the provisions of the act itself and not upon contract. It is generally held that where a contract is made in one state and is to be performed in another state, the law of the place of performance governs the contract. In other words, the laws of the foreign jurisdiction become a part of the contract. Nothing in our statutes suggests that the state of Oklahoma has- attempted to draw within the scope of its own regulations the relation of employer and- employee in work conducted in a sister state. Where an accident occurs in a foreign jurisdiction, perhaps the relation of employer and employee and the rights of each may better be determined by the law in the jurisdiction where the accident occurred. A well-reasoned opinion is found in the case of North Alaska Salmon Co. v. Pillsbury (Cal.) 162 Pac. 93. In that case the claimant was employed under a contract made in the state of California to be performed in Alaska, and the claimant was injured while working in Alaska. The California Commission awarded the' claimant compensation, and, upon review of the award, the Supreme Court of that state said: “The case is before us on rehearing. Our former decision, upholding the jurisdiction of the Commission, was based on the theory that the Workmen’s Compensation Law entered into and became a part of the contract of employment, and that, where such contract was made in this state, the statute fixed the rights c-f the parties with respect to any injury arising out of the employment, wherever such injury might occur. “Upon further study, we are satisfied that this view is not tenable. The liability of the employer to pay compensation arises from the law itself, rather than from any agreement of the parties. -The law operates upon a status, i. e., that of employer and employee, and affixes certain rights and obligations to that status. True, the relation of employer and employee has its inception in a contract, but, once the relation is ere *274 ated, its incidents depend, not upon the agreement of the parties, but upon the provisions, of the law. * * * There is a manifest difference between a compulsory act, like ours, and elective acts, like the Rose-berry Act of 1911, and various statutes in other states, under which the compensation provisions are dependent upon the election or consent of the employer and employee. It may well be said that the rights declared by an elective statute have their origin and sanction in the agreement of the parties to be bound by the statute. Under a compulsory statute, however, the correlative .rights and obligations are not founded upon contract. Nor do they correspond with the legal conception of a tort, since a liability is imposed without regard to the element of wrongdoing on the part of the person charged. The obligation is to be defined as a statutory one, attached by law to a given status.” In the case at bar, the office of the contract was to establish the relation of employer and employee. When this relation had been once established by the contract, our statute imposed certain duties and liability on the parties without reference to the stipulation of the contract with regard to the rights -of the parties under it. Considering our Industrial Act as a whole, we do not think it was the intention of the Legislature to give it an extraterritorial effect. Since this is true, the claimant cannot recover herein. The petition to vacate the award is granted, and the case is remanded, with directions to dismiss it. CLARK, V. C. J., and RILEY, CULLISON, SWINDALL, and ANDREWS, JJ., concur. LESTER, O. J., and McNEILL and KORNEGAY, JJ., dissent.