McALESTER FUEL CO. v. MONTGOMERY

McALESTER FUEL CO. v. MONTGOMERY
1947 OK 139
180 P.2d 168
198 Okla. 499
Case Number: 32519
Decided: 04/29/1947
Supreme Court of Oklahoma

Syllabus

¶0 WORKMEN'S COMPENSATION - Invalidity of order by equally divided commission on appeal from trial commissioner.
Where an order is entered by a single trial commissioner and an appeal is taken as provided by 85 O. S. 1941 § 29 to the commission en banc, and two commissioners, one of which is the trial commissioner, attempts to sustain the action of the trial commissioner and two commissioners dissent therefrom, the fifth member of the commission not voting, no order has been entered either making or denying an award as provided by 85 O. S. 1941 § 75, or as provided for appeals under 85 O. S. 1941 §§ 29 and 77.

Original proceeding in the Supreme Court to review an award of the State Industrial Commission made in favor of Walter D. Montgomery. Award vacated and cause remanded, with directions.

Crouch, Rhodes & Crowe, of Oklahoma City, for petitioners.

Hatcher, Hatcher & Harwood and Mont R. Powell, all of Oklahoma City, and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 This proceeding was commenced to review an award entered by a single commissioner on the 17th day of December, 1945. On appeal to the entire commission four commissioners heard the preceeding. Two of the commissioners, one of whom was the trial commissioner, voted for the affirmance of the award, and two voted against the affirmance.

¶2 A motion to remand the cause was filed by the respondent under the rule announced in Higgs v. State Industrial Commission, 197 Okla. 281, 170 P.2d 240.

¶3 A response to the motion was called for by this court and the petitioners admit the effect of said opinion but ask this court to remand the cause to the State Industrial Commission under the doctrine announced in Southern Drilling Co. v. Daley, 166 Okla. 33, 25 P.2d 1082, with directions to dismiss the proceeding because there is no competent evidence to sustain the award.

¶4 This court has many times held that it will review only final orders of the State Industrial Commission, and therefore there is no authority for remanding the cause to the State Industrial Commission with directions to dismiss.

¶5 The cause is remanded to the State Industrial Commission under the rule announced in Higgs v. State Industrial Commission, supra, with directions to proceed in accordance with the views expressed in that opinion.

¶6 Remanded, with directions.

¶7 HURST, C.J., DAVISON, V.C.J., and RILEY, OSBORN, CORN, GIBSON, and ARNOLD, JJ., concur.