KNOWLES v. WHITEHEAD OIL CO.

KNOWLES v. WHITEHEAD OIL CO.
1926 OK 569
247 P. 653
121 Okla. 55
Case Number: 17183
Decided: 06/22/1926
Supreme Court of Oklahoma

KNOWLES
v.
WHITEHEAD OIL CO. et al.

Syllabus

¶0 1. Master and Servant -- Workmen's Compensation Law--Time for Appeal from Award. Section 7297, C. O. S. 1921, as amended by S. L. 1923, ch. 61, sec. 8, provides for a review in the Supreme Court from an award or decision of the State Industrial Commission, and under such provision said action must be filed in this court within 30 days after notice of the award or decision of the Industrial Commission has been sent to the parties affected.
2. Same--Time Not Affected by Petition for Rehearing Below. The statutory period provided for lodging an action in this court to review an award or decision of the State Industrial Commission can not be extended by entertaining a petition to rehear or review in the Industrial Commission.
3. Same--Dismissal of Appeal Filed After 30 Days. The petition to review the award of the Industrial Commission not having been filed in this court within 30 days after notice of the award or decision of the Industrial Commission has been sent to the parties affected, the action will be dismissed.

James J. Mars, for petitioner.
H. E. Whitehead, for respondents.

Fred Hansen, Asst. Atty. Gen., for Industrial Commission.

PER CURIAM.

¶1 This is an action to review a decision of the State Industrial Commission made December 31, 1925, and an order made January 23, 1926, denying a motion of the petitioner, claimant below, for the Industrial Commission to review or rehear the Commission's decision. The action was filed in this court February 13, 1926. The respondent has filed its motion to dismiss the action for the reason that said cause was not filed in this court within the statutory period of 30 days, as provided by section 7297, C. O. S. 1921, and amended by S. L. 1923, ch. 61, sec. 8, for bringing an action in this court from an award or decision of the State Industrial Commission. The pertinent part of this statute is as follows:

"The award or decision of the Commission shall be final and conclusive upon all questions within its jurisdiction between the parties, unless within 30 days after a copy of such award or decision has been sent by said Commission to the parties affected, an action is commenced in the Supreme Court to review such award or decision. * * *"

¶2 It is necessary, therefore, to lodge the action in this court within 30 days after a copy of such award or decision has been sent by the Commission to the parties affected, to give this court jurisdiction to review the award or decision. It is the contention of the respondent, in its motion to dismiss, that the order denying the motion to review or rehear by the Commission is not an award or decision, and did not toll the statute to give the petitioner 30 days from January 23, 1926, within which to file his action in this court.

¶3 The respondent cites the case of Sandoma Petroleum Co. et al. v. Tow et al., 90 Okla. 276, 217 P. 412, where it was held by this court:

"No motion for new trial is necessary or authorized under this statute, and the 30 day period within which to file petition for review begins to run from the date of the award, and the filing of the motion for new trial does not extend the time within which to commence proceedings for review. The petition not having been filed in this court within 30 days from the date of the award, the petition for review is dismissed."

¶4 The facts as outlined in the opinion above are that the award was made March 29, 1923, and motion for a new trial was filed April 2, 1923, and overruled April 27, 1923. The petition for review was filed in this court on May 24, 1923, more than 30 days after the award, but less than 30 days after the motion for new trial was overruled. The appeal was dismissed. The petitioner in his response contends that the case of Sandoma Petroleum Co. et al. v. Tow et al., supra, does not apply in the instant case, inasmuch as the opinion was written prior to the adoption of the rule by the Industrial Commission providing that a party dissatisfied with the decision of the Commission might file a petition for a rehearing within 30 days after the decision. The rule became effective June 30, 1923, and was amended November 17, 1924, providing that the time for filing the petition for rehearing was limited to ten days instead of 30. Petitioner cites the case of Fitzsimmons v. State Industrial Commission et al., 108 Okla. 276, 236 P. 616, opinion therein rendered by Justice Riley, as holding that the time for filing the action is 30 days from the date the petition to rehear or review is over ruled. True, in that case, a petition to review was overruled by the Commission, but the question of whether or not the statutory period of 30 days, within which to file an action in this court, runs from the date of overruling the petition to review or from the date of the award or decision is not touched upon therein, and has no application here.

¶5 This question has been disposed of in other states. In North Pacific S. S. Co. v. Industrial Accident Commission et al. (Cal.) 34 Cal. App. 488, 168 P. 30, it is held:

"The statute, providing that a petition for writ of review of an award of the Industrial Commission must be made within 30 days of the award must be regarded as a statute of limitation, and a petition made after that time will be dismissed."

¶6 In Enneberg v. State Industrial Accident Commission (Ore.) 167 P. 310, 171 P. 765, it is held that the final voucher sent to plaintiff constituted notice to him of the decision of the Commission to suspend payment, and the notice of appeal, being filed more than 30 days thereafter, was too late. In that case the Commission gave a second notice to the claimant that payment had been suspended, but the Supreme Court of Oregon held that the time within which to appeal ended 30 days after the first notice of the decision to suspend payment, and not after the second notice.

¶7 In Thaxter v. Finn, Sheriff (Cal.) 178 Cal. 270, 173 P. 163, it is stated in the 1st paragraph of the syllabus: