Horwitz Iron & Metal Co. v. Myler ( 1952 )

GIBSON, J.

(dissenting). In order to reach its conclusion the majority opinion attempts to distinguish this case from Mid-Continent Pipe Line Co. v. Wilkerson, 200 Okla. 335, 193 P. 2d 586; Deep Rock Oil Corp. v. Howell, Judge, 200 Okla. 675, 204 P. 2d 282, and Jordon v. Champlin Refining Co., 200 Okla. 604, 198 P. 2d 408. There is no distinction in principle and, in my opinion, the attempt to create one will merely lead to confusion in the law.

It is stated in the opinion that this case is controlled by our decisions in Chickasha Cotton Oil Co. v. Strange, 186 Okla. 136, 96 P. 2d 316; Amerada Petroleum Corp. v. Vaughan, 200 Okla. 226, 192 P. 2d 639, and Parkhill ..Truck Co. v. Wilson, 190 Okla. 473, 125 P. 2d 203. The differences between the cited cases and the case at bar are so obvious that I feel it unnecessary to point them out here.

Rota-Cone Oil Field Operating Co. v. Chamness, 197 Okla. 103, 168 P. 2d 1007, upon which reliance is had, is also not in point, for the reasons stated, and approved by this case in Mid-Continent Pipe Line Co. v. Wilkerson, supra.

Furthermore, the plaintiff in this action sought and recovered an award for his disabilities from Lee Way Motor Freight, Inc., and then in this action sought and recovered a judgment for the same disabilities from the defendant.

In Parkhill Truck Co. v. Wilson, supra, this court said:

«*• * * jn no even-(;) with or without election, with or without assignment, with or without the payment of compensation during the time the common-law action for negligence is being prosecuted, can the injured employee have the benefits of double compensation.”

As I read the record of the trial, there were other errors committed by the trial judge sufficient to cause a reversal of the judgment, but the majority opinion does not stress them, so I shall not do so.

I respectfully dissent.