This is an original action in this court brought by Mrs. Bob Toothman, the widow, and David and Catherine Toothman, the minor children of Bob Toothman, deceased, as petitioners, to obtain a review of an order made by the State Industrial Commission on January 5, 1939, which denied their application to revive an award and which sustained the motion of the respondent Will H. Smith and his insurance carrier to suspend further payments of compensation. The parties will hereafter be referred to as petitioners and respondents.
The facts are not in dispute. On July 11, 1936, the State Industrial Commission made an award in favor of Bob Toothman for permanent partial disability under the "other cases" provision of the statute (subd. 3, § 13356, O. S. 1931, 85 Okla. Stat. Ann. § 22, subd. 3). Thereunder the respondents were required to pay to the said Bob Toothman the sum of $14.81 per week for a period of not to exceed 300 weeks, subject to reconsideration by the commission. The installments which became due under the aforesaid award were duly paid by the respondents until October 16, 1938, at which time the said Bob Toothman departed this life from causes other than his injury. The petitioners thereupon filed with the State Industrial Commission their application to have said award revived in their names and to require payment by the respondents to them of the installments which the beneficiary under said award would have presumably received had he lived. The respondents filed an application to suspend any further payments of compensation on the ground that the award was one which was personal to the beneficiary and abated at his death. The respective applications were heard at the same time, and on January 5, 1939, the State Industrial Commission entered the award which we are now called upon to review, the pertinent portion of which reads as follows:
"1. That on July 11, 1936, an order and award was filed herein awarding the claimant compensation at the rate of $14.81 per week for a period of not to exceed 300 weeks, under the 'Other Cases' provision of the Workmen's Compensation Law.
"2. That on October 16, 1938, the claimant herein died as the result of a gunshot wound, which was in no way Fonnected with the accidental personal injury involved herein.
"3. That said claimant left surviving him his widow, Mrs. Bob Toothman, and two minor children, to wit: David Toothman and Catherine Toothman.
"Upon consideration of the foregoing facts, the commission is of the opinion that the application to revive this cause in the name of the surviving widow and two minor children of the claimant should be denied for lack of jurisdiction, and that the motion of respondent and insurance carrier to suspend payment of compensation herein as of October 16, 1938, should be sustained." *Page 684
The sole question presented herein is one of law, as to whether an award under the "other cases" provision of the statute (supra) is one which survives under the provisions of chapter 29, S. L. 1933, or is one which abates upon the death of the beneficiary.
Prior to the enactment of said chapter 29, S. L. 1933, all awards to injured workmen, whether for specific injury or other cause, were held to be personal to the beneficiary and abated at his death. Swatek Const. Co. v. Williams, 177 Okla. 305,58 P.2d 585; Washabaugh v. Bartlett-Collins Glass Co.,177 Okla. 159, 57 P.2d 1162; Parkhill Truck Co. v. Emery, 166 Okla. 280,27 P.2d 333; Rounds, Ex'x, v. State Industrial Comm.,157 Okla. 145, 11 P.2d 479; Lahoma Oil Co. v. State Industrial Comm., 71 Okla. 160,175 P. 836.
Said chapter 29, S. L. 1933, amended sections 13372 and 13365, O. S. 1931, 85 Okla. Stat. Ann. §§ 48, 41, but the attempt therein to amend section 13356, O. S. 1931, 85 Okla. Stat. Ann. § 22, was void for constitutional reasons. Riverland Oil Co. v. Williams, 176 Okla. 448, 56 P.2d 1167. As pointed out in Cornhuskers Theatres, Inc., v. Foster, 181 Okla. 341,74 P.2d 109, and Jim Young Drilling Co. v. Moyer, 181 Okla. 347,74 P.2d 113, awards under the "other cases" provision of the statute, supra, were excluded from the operation of said amendatory legislation, did not constitute an adjudication which could be commuted to a lump sum, and remained unaffected by such amendatory legislation. For the reasons stated in the above-cited decisions, such award is one personal to the beneficiary and remains subject to the rule which is applicable to claims of that nature and abates upon the death of the beneficiary. The reasons for the rule have been fully explained in the prior decisions cited, and we deem it unnecessary to repeat them here. The State Industrial Commission arrived at the correct conclusion and applied the proper rule in the premises, and the order made is in harmony with the prior decisions of this court. No error of law is presented.
Order sustained.
BAYLESS, C. J., WELCH, V. C. J., and CORN, DAVISON, and DANNER, JJ., concur. RILEY and HURST, JJ., dissent. OSBORN, J., absent.