WM. A. SMITH CONSTR. CO. v. PRICE

WM. A. SMITH CONSTR. CO. v. PRICE
1938 OK 492
83 P.2d 160
183 Okla. 443
Case Number: 27734
Decided: 10/04/1938
Supreme Court of Oklahoma

WM. A. SMITH CONSTRUCTION CO. et al.
v.
PRICE et al.

Syllabus

¶0 1. WORKMEN'S COMPENSATION--Affirmance of Award by Supreme Court With Directions to Vacate Portion Relating to Average Daily Wage-Questions Adjudicated in Award Cannot Be Relitigated Before Industrial Commission.
When an award of the State Industrial Commission has been affirmed by this court with directions to vacate the part of the award with relation to the average daily wage, and the State Industrial Commission has entered an order in accordance with the mandate of the court, the questions formerly adjudicated in said award are final and cannot be relitigated before the Industrial Commission, and the sole question presented to the commission on the affirmance of said award, with directions, is the question of daily wage of the injured employee.
2. SAME--Award Supported by Competent Evidence not Disturbed on Review.
An award of the State Industrial Commission will not be disturbed by this court where there is competent evidence reasonably tending to support the same.

Original proceeding in the Supreme Court by the Win. A. Smith Construction Company et al. to review an award of the State Industrial Commission in favor of Mitchell Price. Award affirmed.

Thurman & Thurman, for petitioners.
C. E. Thomas and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 This is the second proceeding to vacate the award in favor of the respondent Mitchell Price. The petitioner heretofore filed a proceeding to vacate the award, and the opinion of the court is reported as Win. A. Smith Const. Co. v. Price, 178 Okla. 423, 63 P.2d 108. This court affirmed the award, with directions to make a proper finding as to the average daily wage of said respondent.

¶2 On January 5, 1937, the State Industrial Commission entered its order in accordance with the mandate of the court fixing the average daily wage of the respondent at $2.25, which amount is pointed out in the former opinion of this court as being the only amount supported by the record in that proceeding. This proceeding is brought to reverse the order of January 5, 1937. The parties will be referred to as petitioner and respondent.

¶3 At the outset petitioner presents error in overruling a motion to set aside the order. which motion was filed January 19, 1937. Therein it is stated:

"It is the contention of the respondent and insurance carrier herein that the opinion of the appellate court in this case, sustaining paragraph No. 4 of the Order of March 20, 1936, does not divest the commission of its jurisdiction to again hear and again consider the findings in paragraph No. 4 of the Order of March 20, 1936. That when said mandate was received by the Industrial Commission it set aside the entire Order and findings of the commission and upon receipt of the mandate the commission has jurisdiction to determine all questions presented to it."

¶4 This establishes thoroughly the theory of the petitioner. We cannot agree with this contention. The award affirmed in Smith Const. Co. v. State Industrial Commission, supra, cannot again be litigated. Pinkston Hdw. Co. v. Hart, 172 Okla. 566, 46 P.2d 501; Davon Oil Co. v. State industrial Commission, 177 Okla. 612, 61 P.2d 579; Amerada Pet. Corp. v. Elliff, 171 Okla. 38, 41 P.2d 850; Ward v. Carter, 96 Okla. 183, 221 P. 48. In Ward v. Carter, supra, we said:

"Where a cause is reversed and remanded by the Supreme Court, with directions to proceed in accordance with the decisions of the appellate court, and the court below proceeds in substantial compliance with such directions, its action will not be considered on a second appeal."

¶5 Petitioner cites and relies upon A. A. Davis & Co. v. Young, 154 Okla. 144, 7 P.2d 459; Marland Oil Co. v. Sans, 175 Okla. 131, 51 P.2d 751, together with many other authorities. We have examined those authorities and are of the opinion that they are not in point. After the commission has entered its order, it becomes final unless it is vacated within 30 days after the entry thereof. The only relief which petitioner has against the order or award is to appeal therefrom to the Supreme Court. The matters therein litigated cannot again be litigated. If the petitioner wishes, he may proceed on the ground that there has been a change of condition from and after the date of the last; award. Petitioner has that right according to the decisions of this court, many of which have been cited in support of the, rule contended for by the petitioner above. No such proceeding has been instituted.

¶6 This is the sole issue presented. There is competent evidence to sustain the finding of the State Industrial Commission of January 5, 1937, with respect to the average daily wage of the respondent, and in fact the order was made in accordance with the man(late of this court and the suggestions found in the opinion referred to above.

¶7 The award of January 5, 1937, is affirmed.