Allison v. Bareco Oil Co. ( 1950 )


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  • ARNOLD, V.C.J.

    (dissenting). Upon consideration of all the testimony introduced in this case, the Industrial Commission found: “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.” In accordance with that finding the claim was denied.

    Claimant filed this original action and for reversal asserts:

    “The State Industrial Commission erred in holding that 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 in denying his claim for compensation when from the evidence it was clearly shown that the claimant’s heart gave way or was injured while he was engaged in lifting the hose and the turbine while in the course of his employment, as defined by the Workmen’s Compensation Law of the State of Oklahoma.”

    The ground of reversal of the judgment of the Industrial Commission stated by the majority is not argued or even mentioned by any of the parties in their briefs.

    The original opinion in the Rouse case, 19 O. B. J. 887, and the dissenting opinion thereto, 19 O. B. J. 1596, were extant at the time the order in the case at bar was entered. Reference is made to them by the petitioner in its brief and the claimant refers to them in his reply brief. In the reply brief it is argued by claimant that the Rouse case factually is “substantially different from the case at bar.” I think this is true. Whether it is or not this record does not disclose that these opinions, not final at the time of the entry of the order in this case, had any bearing on the determination of the fact question presented to the Industrial Commission in the instant case. Before those opinions were written the rule was that the cause of an injury is a question of fact to be determined by the Industrial Commission and its determination thereof will not be disturbed on appeal if reasonably supported by the evidence. That is still the rule. Shell Oil Co., Inc., v. Thomas et al., 202 Okla. 190, 211 P. 2d 263. In the original Rouse opinion we reviewed the evidence and said there was no evidence to support the finding that an accident had occurred. If we had at that time thought there was evidence reasonably supporting the finding of the commission that an accident had occurred, we would have said, as we later said in that case, that the commission’s determination of the question is binding on this court. In the Rouse case we merely changed our mind as to the *618probable effect of the testimony on the point. No principle of law or rule of evidence has been changed by the substitution of the present final opinion in the Rouse case. Certainly, without a showing that the substantial rights of the claimant were adversely affected by the opinions in the Rouse case, extant at and before the entry of the order herein, we should not hold this to be true. To so hold is to say that Judge Babcock, chairman of the commission and a venerable judge of the district court of Oklahoma, and M. M. Thomas, a well-known and thorough lawyer of high standing, were prejudiced by an opinion, not final, which is not even shown to have been called to their attention, much less shown that it had anything to do with their determination of the facts in the instant case. I must assume that they and the other two commissioners who participated in making the order determined on the facts alone in the case at bar that the heart condition of claimant was not the result of an accident.

    I have been unable to find any case that holds that a judgment of an appellate court, not final but thereafter changed to a different conclusion on the facts, is grounds for reversal of a judgment entered before the change was made by the appellate court. Obviously none of the cases cited in the majority opinion are in point. No rule of law has been changed by this court by the substitution of another opinion in the Rouse case.

    It is wholly unnecessary to vacate the order herein and grant a new trial for the reason stated in the majority opinion. The order could be vacated on the sole ground asserted by claimant. There may be other tenable grounds for accomplishing the same purpose. We should not vacate the order on the assumption that the substantial rights of claimant were adversely affected by something not shown of record or asserted by any party to the case.

    The rule of this case will in my judgment work great injustice in the future to plaintiffs and defendants.

Document Info

Docket Number: No. 34079

Judges: Arnold, Corn, Davison, Gibson, Halley, Johnson, Luttrell, Neal, Welch

Filed Date: 7/5/1950

Precedential Status: Precedential

Modified Date: 11/13/2024