Aetna Life Ins. Co. v. Price , 152 Okla. 52 ( 1931 )

An issue presented by the record and in the briefs in this case is not considered in the opinion of my associates. For that reason I am forced to dissent.

The record in this case shows the evidence was taken by Mrs. Roblin, one of the members of the State Industrial Commission, and that an award based upon the findings of fact made by her and concurred in by the three members of the State Industrial Commission was made under date of October 4, 1930. Thereafter the two members of the State Industrial Commission, who had not heard the evidence and whose knowledge thereof was confined to that obtained from the reading of the typewritten transcript thereof, changed their minds and, over the protest of Mrs. Roblin and without having heard any of the testimony and without hearing any evidence after granting a new hearing, they vacated the award of October 4, 1930, and made an award under date of January 15, 1931. That award was not concurred in by Mrs. Roblin, and neither of the Commissioners who concurred in it saw any of the witnesses or heard any of the testimony. It was based solely upon the information that they received from the reading of the typewritten transcript of the evidence taken before Mrs. Roblin.

The petitioner herein contends that the two members of the State Industrial Commission who concurred in the last award, which is the award before this court for review, had no greater knowledge of the facts in this case than is available to the members of this court from a reading of the typewritten record in this case, and that neither of them had an opportunity to observe the witnesses and their conduct or to consider the evidence in the light of the knowledge gained from an observation of the conduct and demeanor of the witnesses upon the witness stand. That contention is evidently correct, unless this court is willing to concede that two members of the State Industrial Commission are better able to determine facts by reading a typewritten transcript of evidence than are the members of this court. Personally, I think that the members of this court can ascertain the facts from reading a typewritten record as well as the members of the State Industrial Commission. I think that the rule that an award of the State Industrial Commission will not be disturbed by this court, if there is any competent testimony in the record to support the same, is based on the fact that the members of the State Industrial Commission, like the members of a jury, have an opportunity to see the witnesses and observe their conduct and demeanor upon the witness stand. But, in this case, no member of the State Industrial Commission who concurred in the award saw any of the witnesses or heard any of the evidence.

The evidence in this case is conflicting. There is some verbal testimony that will support the award, but the written evidence in this case is to the contrary. There is thus presented the question of whether or not the witnesses were testifying truthfully. Under all the rules of which I have any knowledge, under such state of facts, the conduct and demeanor of the witnesses upon the witness stand must be the determining factor. Such is the rule in a trial before a jury where only $25 is involved. Certainly there was no intent on the part of the Legislature that such a rule could not be applied in a matter involving more than $5,000.

The issue in this case is whether the claimant, Dewey Price, was in the employ of Alleman Dilley at the time of the injury, or whether he was in the employ of L.E. Alleman, operating as the Shrine Drilling Company. If he was in the employ of L.E. Alleman, operating as the Shrine Drilling Company, the Aetna Life Insurance Company is liable as the insurance carrier of L.E. Alleman. If he was in the employ of Alleman Dilley, then Alleman Dilley are liable, for that copartnership did not have compensation insurance at the time of the accident. The Pure Oil Company, the employer in the case, recognized this condition and withheld some $10,000 of the amount due from it to Alleman Dilley under its contract with Alleman Dilley, under the authority of the statute, for the purpose of protecting itself against any liability by reason of the inability of Alleman Dilley to satisfy an award against them. It is evident that both Alleman and Dilley were interested in establishing the fact that the claimant was not in their employ, but in the employ of L.E. Alleman, for, if that fact was established, Alleman Dilley would not be liable and the Aetna Life Insurance Company would be liable.

The record shows that Alleman Dilley was a copartnership and that it entered into a contract with the Pure Oil Company to drill the oil well in the operation of which the claimant was injured. Alleman claims that the partnership was dissolved on July 27, 1929; that he took over the well at that time and completed the drilling of it under the name of the Shrine Drilling Company, and that the claimant was an employee of the Shrine. Drilling Company. Under date of September 19, 1929, L.E. Alleman executed an employer's first notice of injury. The title was, "Dewey H. Price v. Alleman Dilley, Drilling Contractors." It shows the name of the employer as Alleman Dilley and it was executed "Alleman Dilley, by L.E. Alleman." That report was 'received by the Aetna Life Insurance Company at its Tulsa office on September 24, 1929. Alleman admitted the execution thereof when it was presented to him for identification during the hearing. Thereafter he denied the execution thereof. He said that he was not in the state on the 19th day of September, 1929; that the signature looked like his; that he did not sign it because he was not in the state at that time; that he did not know until about eight o'clock in the evening on September 19th of the injury to the claimant, and that at that time he was 350 miles away. He was then confronted with checks which he admitted that he signed. Whereupon he admitted that he had executed the instrument. Dr. A.H. Silverman executed an attending physician's report, upon which L.E. Alleman wrote the following, "L. E. Alleman O. K." That report was entitled "Dewey H. Price v. Alleman Dilley."

J.D. Ford, an employee of the Aetna Life Insurance Company, testified as to a conversation with L.E. Alleman over the telephone on September 18, 1929, and said that Mr. Alleman told him at that time that Alleman Dilley had had a serious accident occur to one of their employees. Alleman denied that conversation, and said that he was not in the state at that time. The records of the Bell Telephone Company were offered, showing that at 10:12, a. m. on September 18, 1929, Alleman called Pierce, Porter Martin, who were the agents of the Aetna Life Insurance Company, at Tulsa. Alleman changed his former testimony and admitted that he was in Bristow on the 18th day of September, 1929. He stated that the telephone call advising him of the injury to the claimant was received at ten o'clock on the night of the 17th day of September and that he immediately left for Holdenville. Daily reports were made to the Pure Oil Company in the name of Alleman Dilley. The amount due from the Pure Oil Company for drilling a well was about $45,000. The Pure Oil Company withheld $10,000 for the purpose of protecting itself against liability on this claim. Thirteen thousand dollars was paid to Alleman Dilley in June, 1929. A check for about $8,000 was executed to Alleman Dilley on February 10, 1930. On February 10, 1930, an assignment from Alleman Dilley to the Oil Well Supply Company of $14,000 was made, completing the $45,000 due. The assignment referred to was as follows:

"Tulsa, Oklahoma.

"February 10th, 1930.

"Pure Oil Company.

"Tulsa, Okla.

"This will be your authority to pay to the Oil Well Supply Company the sum of $14,000 from proceeds of the Johnson Well No. 1, in Hughes county, Okla., charging same against the Alleman and Dilley account.

"Alleman Dilley "By L.E. Alleman."

I do not consider it necessary to comment on the evidence further. I think that the written evidence shown by this record is in conflict with the testimony of Alleman that this partnership was dissolved in July, 1929. I think that an award could not be made in this case by two Commissioners, neither of whom heard the evidence, saw the witnesses, or observed their conduct and demeanor upon the witness stand, when the only Commissioner who heard the evidence, saw the witnesses, and observed their conduct and demeanor upon the witness stand refused to concur therein. My reason for so thinking is that the petitioner in this case should not be deprived of that evidence long recognized which is material and which is described by the Supreme Court of Missouri in the case of Creamer v. Bivert, 113 S.W. 1118, in the following language:

"We well know that there are things of pith that cannot be preserved in or shown by the written page of a bill of exceptions. Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last resort. She oft hides in nooks and crannies visible only to the mind's eye of the judge who tries the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. The brazen face of the liar, the glibness of the schooled witness in reciting a lesson, or the itching over eagerness of the swift witness as well as the honest face of the truthful one, are alone seen by him. In short, one witness may give testimony that reads in print, here, as if falling from the lips of an angel of light, and yet not a soul who heard it nisi, believed a word of it; and another witness may testify so that it reads brokenly and obscurely in print, and yet there was that about the witness that carried conviction of truth to every soul who heard him testify."

The same thought was expressed in United States v. Lee Huen, 118 Fed. 442, as follows:

"It is true that an intelligent and experienced judge often detects the falsehood of a witness who tells a story, which, reduced to writing, reads smooth as the Psalms of David."

And in Calvert v. Carpenter, 96 Ill. 63, wherein it was said:

"It can scarcely be repeated too often that the judge and jury who try a case in the court below have vastly superior advantages for the ascertainment of truth and the detection of falsehood over this court, sitting as a court of review. All we can do is to follow with the eye the cold words of the witness as transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcribing. But the main difficulty does not lie here. There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him. * * * However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination something in his manner or bearing on the stand that betrays him and thereby destroys the force of his testimony."

In my judgment the award concurred in by Mrs. Roblin should not have been vacated and set aside, and that, if it was, a new hearing should have been had prior to the making of the second award, that the other Commissioner's might have an opportunity to hear the evidence, see the witnesses, and observe their conduct and demeanor upon the witness stand. Such is the rule in civil actions. When a trial court hears the evidence, renders a judgment, and thereafter grants a new trial, judgment cannot be rendered on the evidence theretofore taken, but a new trial must in fact be had, and the second judgment must be rendered upon the evidence taken at the second trial. Curtis v. Bank of Dover, 113 Okla. 224, 241 P. 173.

For the reasons expressed herein, I dissent.