BLACKBURN CONSTRUCTION CO. et al. v. KENNEDY et al.

BLACKBURN CONSTRUCTION CO. et al. v. KENNEDY et al.
1933 OK 451
24 P.2d 1011
165 Okla. 66
Case Number: 24547
Decided: 09/12/1933
Supreme Court of Oklahoma

Blackburn Const. Co.
v.
Kennedy

Syllabus

¶0 Master and Servant--Workmen's Compensation--Review of Awards--Vacation of Award Upon Confession of Error by Claimant.
In proceedings before this court attacking an order of the State Industrial Commission made to a claimant, where an assignment sets out the insufficiency of the evidence to support the award, and a confession of error is thereafter filed by the claimant admitting the insufficiency of the evidence to support the award made by the Commission, where it appears that the assignment is reasonably supported by the facts, this court may in its discretion vacate the award made by the Commission.

Original proceedings in the Supreme Court by the Blackburn Construction Company and American Surety Company from an action of the State Industrial Commission refusing to vacate an award made by the Commission. Award vacated.

S. J. Clay, J.
S. Ross, and James H. Ross, for petitioners.
G. G. McBride, Jeffrey & Fry, and J. Berry King, Atty. Gen., for respondents.

OPINION: PER CURIAM.

¶1 This original proceeding was filed herein March 27, 1933.

¶2 On the 17th day of July, after the brief of petitioners had been filed raising only the assignment of error that there was no evidence to support the award made by the Commission, and alleging error because the Industrial Commission should have sustained the petitioners' motion to discontinue the compensation for temporary total disability, and in said confession of error the following language is used:

"Comes now the respondent T. D. Kennedy, in the above numbered and entitled cause, and admits that the evidence taken before the Industrial Commission does not support the order and award made by the Commission in that the evidence is conclusive that the healing period had ended and compensation for temporary disability should have been terminated. Respondent, Kennedy, therefore, confesses error in the order made and requests that the cause be remanded to the Industrial Commission for further proceedings therein."

¶3 In the only assignment of error raised by the petitioners, the following language is used:

"Therefore, the Industrial Commission should have sustained the petitioners' motion to discontinue compensation for temporary total disability, and if the Commission was of the opinion that the claimant had any permanent disability, or if the claimant's attorney requested the Commission to do so, the claim should have been set for hearing on permanent disability."

¶4 Upon such statement in the assignment of error and upon the confession of error filed herein, the proceeding is reversed and remanded to the Industrial Commission, with directions to vacate the award heretofore made.