FLANIGAN v. LINCOLN CONSTRUCTION COMPANY

FLANIGAN v. LINCOLN CONSTRUCTION COMPANY
1955 OK 287
288 P.2d 1112
Case Number: 36758
Decided: 10/18/1955
Supreme Court of Oklahoma

PEARL FLANIGAN, PETITIONER,
v.
LINCOLN CONSTRUCTION COMPANY, TRI-STATE NSURANCE COMPANY, EFFIE FLANIGAN, AND STATE INDUSTRIAL COMMISSION, ESPONDENTS.

Syllabus

¶0 Where an employee under Workmen's Compensation Law, while engaged in the course of his employment, sustains an accidental injury resulting in his death, and leaves surviving him a widow and dependent mother, but no children, his surviving widow is entitled to recover full compensation allowable under Death Benefit Provisions of the Law, to the exclusion of the mother since next of kin may participate in benefits recoverable only in the event deceased leaves surviving no spouse or dependent children.

Petition for review from the State Industrial Commission.

[288 P.2d 1113]

Original proceeding by Pearl Flanigan to review an order of the State Industrial Commission denying her claim for compensation filed against Lincoln Construction Company and its Insurance Carrier. Order sustained.

Forrester Brewster, Edwin Langley, Muskogee, for petitioner.

Rhodes, Crowe, Hieronymus & Holloway, Oklahoma City, Philip N. Landa, Tulsa, Richard M. Huff, Asst. Atty. Gen., for respondents.

PER CURIAM.

¶1 On March 23, 1953, Clifford Flanigan, while engaged in "hazardous employment" in the employ of Lincoln Construction Company, respondent herein, sustained an accidental injury resulting in his death.

¶2 On May 25, 1953, Effie E. Flanigan, surviving widow of deceased, filed a claim for compensation in her own behalf, and in behalf of all other dependents entitled to participate in recovery of death benefits, against respondent Lincoln Construction Company and its insurance carrier, to recover compensation under the death benefit provisions of the Workmen's Compensation Law.

¶3 The trial commissioner found that no administrator of the estate had ever been appointed; that Clifford Flanigan, while in the employ of respondent Lincoln Construction Company, sustained an accidental injury at the time and in the manner stated in claimant's claim, resulting in his death; that Effie E. Flanigan is the surviving wife of deceased; that deceased left no children; that his surviving wife is his sole and only dependent and awarded her the full amount of benefit recoverable under the Workmen's Compensation Law in the sum of $13,500. This award has been fully paid and satisfied.

¶4 Thereafter, and on November 17, 1953, Pearl Flanigan, mother of deceased, filed an additional claim for compensation against respondent construction company, in which she alleges that she was a dependent of her son and is entitled to participate in the death benefit recoverable under the Act. The trial commissioner denied her claim on the theory that it had already been adjudicated that Effie Flanigan, surviving wife of deceased, was his sole and only dependent, and the full amount of death benefit has been awarded to her, and that the Commission was without jurisdiction to award any further or other compensation. The order was sustained on appeal to the commission en banc.

¶5 Pearl Flanigan, petitioner herein, brings the case here to review this order and relies for its vacation on the ground that it is not supported by the evidence, and is contrary to law.

¶6 The evidence discloses that deceased for a number of years prior to his death made monthly contributions to the support of his mother, from $30 to $40 per month, and that he continued to do so up to the date of his death, and that he otherwise provided for her support and petitioner upon this evidence asserts that she is entitled to participate in the death benefit recoverable under the Act, and in support thereof relies on 85 Okl.St.Anno. § 3.1, which provides:

[288 P.2d 1114] "(1) The term `Dependent' or `Dependents,' as used n this Act, shall mean and include the heirs at law f the deceased, as defined by the Descent and istribution Statutes of Oklahoma."

¶7 In Capitol Steel & Iron Co. v. Fuller, 206 Okl. 638,

"* * * In the instant case only the interpretation and constitutionality of section 4 (amending

¶8 Since under the above authorities the only persons entitled to recover death benefit under the Death Benefit Provision of the Law are the same as those entitled to recover damages under

¶9 Counsel for petitioner concede that under the authority of Capitol Steel & Iron Co. v. Fuller, supra, petitioner is not entitled to participate in the Death Benefit Provisions of the statute, but insist that an erroneous conclusion has been reached in said case. It is asserted that the court in the above case was in error in construing Death Benefit Provisions of the Act in connection with the Wrongful Death Statute,

¶10 We conclude that the Commission reached the correct conclusion in denying petitioner's claim for compensation.

¶11 Order sustained.

¶12 WILLIAMS, V.C.J., and WELCH, CORN, DAVISON, HALLEY, BLACKBIRD and JACKSON, JJ., concur.