Western Indemnity Co. v. State Industrial Com. , 96 Okla. 100 ( 1923 )

This is an action commenced in this court by the Western Indemnity Company to reverse an award made by the Industrial Commission on October 5, 1921, whereby W.M. Hobson, operating as the W.M. Hobson Drilling Company, as employer, and the Western Indemnity Company, as insurance carrier, were ordered to pay Jack Allen compensation for an injury, the sum of $18 per week for a period of 500 weeks, and a supplemental order made October 8, 1921, requiring the respondents and insurance carrier to pay costs before a referee. Allen has since died, and the cause has been reviewed in the name of Esther Allen, the administratrix.

To reverse this award, the insurance carrier argues in its brief seven separate and distinct propositions. We do not think that any of the first six propositions, however, are properly before this court for review. Section 7319, Comp. Stat. 1921, provided as follows:

"The commission or commissioner or inspector in making an investigation of inquiry or conducting a hearing shall be required to preserve a complete record of all oral or documentary evidence considered to any part of such evidence any party affected thereby may object, which objection shall be considered and passed on by the commission and preserved in the record." Section 7297, Comp. Stat. 1921, provides for a review of the award and decision of the Industrial Commission by this Court, and provides in part as follows:

"Such action shall be subject to the law and practice applicable to other civil actions cognizable in said court."

The general rule prevailing in this jurisdicton to reverse a decsion of an inferior court, may be stated as follows:

"Errors alleged to have occurred at the trial in the lower court, unless the same are excepted to, will not be considered on appeal in the Supreme Court." See McKee v. Jolly, 72 Oklahoma 178 P. 656.

Another principle of law is also applicable, to wit:

"Where a party tries his case upon one theory in the trial court, he will not be permitted to change in this court and prevail upon another theory and issue not presented to the trial." See Hughes v. Kano, 68 Okla. 203, 173 P. 447.

It is very evident that the Legislature, when adopting section 7319, supra, intended that the same should be the method of preserving the record before the Industrial Commission, when either party desired to object to any evidence that was considered by the commission, and if the party felt aggrieved by the ruling of the commission, he could assign the same as error and have the same reviewed by this court.

In the instant case the record fails to disclose that the Western Indemnity Company made any objection to the evidence introduced, nor did they object to taking the evidence before a referee, nor did they make any objection to the appointment of a referee to take the evidence, nor did they object to the evidence after the same had been taken before the referee and filed with the commission. On the contrary, the record discloses that upon the date set for taking testimony the attorney for the company appeared and announced ready for trial, and all the parties proceeded to take the evidence without any objection, made a statement of their defense and the facts they expected to prove, and the evidence was taken and transcribed and filed with the commission, and no objection interposed against the commission considering said evidence.

It is first contended that the award of the commission should be set aside because the commission was without jurisdiction to determine the validity of the cancellation or invalidity of the insurance policies. 'The Workmen's Compensation Law provides that an employer shall carry insurance, being sections 7308 to 7311, Comp. Stat. 1921. The policy in the instant case provides that the same might be canceled by either party by giving not less than ten days' written notice to the State Industrial Commission, and to the other party. Upon the hearing before the commission it developed that the policy had been canceled by the commission, but the employer contended he had no written notices as required by the policy. Whether the Western Indemnity Company was an insurance carrier, and its policy was in force and effect, was a question of fact to be determined by the commission. The Western Indemnity. Company defended upon the theory that its evidence would disclose that the policy had been canceled, and was not in force and effect. This was the issue of fact submitted to the commission. Both parties tried the case upon this theory and introduced their evidence to support their theory. No objection was made to the evidence introduced, nor to the commission considering said evidence. By applying the rule heretofore announced, which is stated as follows:

"Where a party tries his case upon one theory in the trial court, he will not be permitted to change in this court and prevail upon another theory and issue not presented to the trial court." See Hughes v. Kano, 68 Okla. 203. 173 P. 447.

— the Western Indemnity Company having tried this case upon the theory that the commission had jurisdiction, and having failed to object to any of the evidence introduced by the claimant as required by section 7319, supra, it will not be permitted to change its theory in this court and prevail upon another theory or contend that evidence was improperly considered. The evidence introduced before the commission was sufficient to support the finding that the policy was in force and effect.

The second proposition argued in the brief is stated substantially as follows: Having decided the case in favor of the Western Indemnity Company and having released it from liability, the commission was without authority to reinstate the action against the Western Indemnity company.

Section 7325, Comp. Stat. 1921, provides, in substance, that the power and jurisdiction of the commission over such case shall be continuous, and it may from time to time make such modification or change in respect to former findings or orders relating thereto as in its opinion may be just.

If there was an error in the commission setting aside its former order and taking further testimony, we think the error, if any, was also waived. The record fails to disclose that the Western Indemnity Company made any objections to reinstating the case, nor did they object to taking additional evidence that was considered by the commission to determine whether a change or modification should be made in the order. Having failed to object to the evidence in the lower court, the same cannot be presented for the first time and alleged as error in this court.

The third proposition is stated as follows: The attempted appointment hearing, and finding by the referee were and are void as being without authority and jurisdiction.

It is immaterial whom the evidence was taken before; the only question material, was whether, when the same was transcribed and filed before the commission, it should have been considered. The parties appeared and submitted the evidence to the referee, all of which was transcribed and filed with the commission without objection, and thereafter the commissioners, without objection, made their finding based upon said transcript. The authority to appoint a referee, therefore, becomes immaterial.

The fourth proposition is stated as follows: Findings of fact on the question not within the jurisdiction of the commissioner are not final, but subject to be reviewed by this court, and it may weigh the evidence. Under this proposition, it is contended this court must weigh the evidence to disclose whether the policy of the insurance carrier had been previously canceled. We do not think counsel's position is correct, but even if we assume the same is correct, there is evidence that the insurance carrier did not comply with the terms of the policy in giving written notice for its cancellation, and it could not be said, even assuming counsel's position is correct, which we do not, that the finding of the commission was clearly against the weight of the evidence.

As to the fifth proposition, it is contended that the admitted facts in the evidence are insufficient to sustain the award against the company. The evidence has been reviewed and, as heretofore stated, is sufficient to support the award.

The sixth proposition is stated as follows: The Industrial Commission failed or refused the petitioner a right to be heard upon the finding of the supposed referee. The record fails to disclose that the insurance carrier was denied or refused the right to be heard before the Industrial Commission. If the insurance carrier desired to be heard further before the commission or made any request to be heard before the commission, the record fails to disclose that fact.

It is very evident that the Legislature by section 7319, supra, and section 7297, supra, intended to provide a method of preserving a record before the commission, and that a party, feeling aggrieved, might assign said ruling of the commission as error, and have the same reviewed in this court. It was never intended that a party could proceed and try his case before the commission, and make no objection to the evidence or orders of the commission, and present his objections for the first time in this court.

The last question presented relates to the supplemental order of the Commission made on the 8th day of October, 1921, wherein the commission ordered that the respondent and insurance carrier be taxed with the costs of the proceedings before the referee. We know of no law or statute that authorizes the commission to tax such costs to the respondent or insurance carrier. This portion of the order will be reversed and vacated. However, we think it was the duty of the insurance carrier to have called the commission's attention to the invalidity of this order, and asked to have the same set aside, and if the commission overruled said request, to have excepted to the ruling of the commission and then assign the same as error in this court.

It is therefore the judgment and order of the court that the award of the commission made on the 5th day of October, 1921, is affirmed, and the supplemental order made on the 8th day of October, 1921, is vacated and set aside, and the costs of this proceeding be taxed against the insurance carrier.

JOHNSON, V. C. J., and KANE KENNAMER, NICHOLSON, and BRANSON, JJ., concur.

On Rehearing.