Allison v. Bareco Oil Co.

O’NEAL, J. This is a proceeding to review an order of the State Industrial Commission denying petitioner’s claim under the Workmen’s Compensation Law. August 5, 1948, petitioner, James Clyde Allison, filed with the State Industrial Commission his first notice and claim for compensation, stating that on January 29, 1948, while employed by respondent Bareco Oil Company, as a boiler-repairman and water treater, he sustained an accidental injury aris [616] ing out and in the course of his employment while turbining a boiler. Respondent filed its answer consisting of a general denial and a plea of failure of claimant to give notice of the alleged injury, and that respondent’s rights were prejudiced thereby. Hearing was had before a trial commissioner, and on February 12, 1949, the trial commissioner entered an order denying an award. The finding of the commissioner is as follows: “That under the evidence in this case, claimant did not sustain an accidental injury arising out of and in the course of his employment as defined by the Workmen’s Compensation Law of the State of Oklahoma, and therefore his claim for compensation should be denied.” The order, as amended, in respect to a matter not here material, was affirmed by the commission en banc, and this proceeding is brought to review said order. Claimant’s disability was a result of a heart attack which he alleges occurred under such circumstances that it constituted an accidental personal injury under the provisions of the Workmen’s Compensation Act. The factual situation herein is, in some respects, similar to that in the case of Gulf Oil Corporation v. Rouse et al., No. 33022. An opinion of this court in the Rouse case was adopted June 15, 1948, wherein it was held that such a disability occurring under the circumstances there did not constitute an accidental personal injury. This opinion, although it had not become final, had been adopted and was outstanding at the time of the order of the State Industrial Commission here under review. Subsequently, and on October 4, 1949, the above original opinion in the Rouse case was superseded by another opinion of this court which has now become final and constitutes established law in this jurisdiction. (Reported in 202 Okla. 395, 214 P. 2d 251). In this latter and final opinion, it was held that the injury sustained in that case was a compensable accidental personal injury within the purview of the Workmen’s Compensation Act. In the case at bar, it has been strenuously urged that the finding and order of 'the commission being attacked was the result of the application of the law as construed in the first and superseded opinion in the Rouse case to the facts here in issue. This court need not determine that fact and what is here said is not to be construed as the expression of any opinion upon the merits of this case but, in order that right and justice will be certain to prevail, it is .only fair that the commission be reinvested with jurisdiction to determine the facts without possibility of error resulting from any change in the interpretation of the law by this court. A similar situation was presented to the Supreme Court of the United States in the case of Patterson v. Alabama, 294 U. S. 600, 55 S. Ct. 575, 79 L. Ed. 1082. Therein it was said: “We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the state court may be free to act. . .” Following this line of reasoning, the Florida court, in the case of Yates v. St. Johns Beach Development Co., 122 Fla. 141, 165 So. 384, used the following language: “The exercise of the appellate jurisdiction of the Supreme Court involves the power of this court, not only to correct errors in the judgment' under review, but to make such disposition' of the cases as justice may require' in or [617] der that a correct principle of decision arising since the judgment, and having a bearing upon the right disposition of the case, may be considered and passed upon by an inferior court whose judgment will be vacated and the cause remanded for further proceedings to that end, in proper cases.” The same general mode of procedure was-approved by this court in the case of Sanford et al. v. Perkins et al., 185 Okla. 484, 94 P. 2d 533. There, the plaintiffs, in a suit to set aside a tax deed, made no tender of unpaid taxes, relying upon former opinions of this court which were overruled subsequent to the trial. The cause was remanded to allow plaintiffs an opportunity to comply with the latter opinion. For these reasons the order of the State Industrial Commission is vacated without prejudice, that the commission may make such findings of fact and conclusions of law as are warranted by the evidence under the law. Order vacated and cause remanded with instructions to proceed in accordance with the views herein expressed. DAVISON, C.J., and LUTTRELL, HALLEY, and JOHNSON, JJ., concur. ARNOLD, V.C.J., and WELCH, CORN, and GIBSON, JJ., dissent.