# Roberts v. Merrill > Supreme Court of Oklahoma · November 5, 1963 · 386 P.2d 780 URL: https://www.frixlaw.com/law-library/cases/9545065 ## Case - **Full name:** Mrs. Opal Lucille ROBERTS, for Herself, and on Behalf of John Harland Roberts, a Minor, as Mother and Next of Kin, Petitioner, v. W. O. MERRILL and Ella Cowling D/B/A Riteway Laundry and Dry Cleaners, a Co-Partnership, and American Surety Company, a Corporation, Insurance Carrier, and the State Industrial Court, Respondents - **Court:** Supreme Court of Oklahoma - **Decided:** November 5, 1963 - **Citations:** 386 P.2d 780; 1963 OK 250; 1963 Okla. LEXIS 521 - **Precedential status:** Published - **Opinion:** Dissent by Blackbird - **Judges:** Davison, Johnson, Williams, Jackson, Irwin, Blackbird, Halley, Welch, Berry - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9545065 ## Opinion text BLACKBIRD, Chief Justice (dissenting). I cannot concur in the majority opinion. I think its erroneous conclusion is the result of confusing, and treating as being in the same category, with tort actions for wrongful death, proceedings in the State Industrial Court for the $13,500 in death benefits provided under our Workmen’s Compensation Law for dependents of employees fatally injured while engaged in hazardous occupations. The right of action for damages on account of negligence for wrongful death was the only one in existence for recovering against a master, or employer, for his em *788 ployee’s loss of life at the time our Oklahoma Constitution, with its Article 23, Section 7, was adopted; and this was the •only “right of action” that could have been within the contemplation, or scope, of that section’s prohibition against abrogation and “statutory limitation”. In this connection, see F. W. Woolworth Co. v. Todd, 204 Okl. 532 , 231 P.2d 681 , cited in the majority •opinion. Be that as it may, however, and assuming that there ever was any basis for believing that Article 23, Section 7, supra, applied to Workmen’s Compensation ■cases arising out of accidental deaths, as certain dictum in Black Gold Pet. Co. v. Hirshfield, 182 Okl. 634 , 79 P.2d 566 , 567 —cited in the majority, might be interpreted ■to indicate, it is my opinion that all doubt •as to the matter should have been dispelled by the express exclusion of workmen’s compensation death claims from operation of said section, by its 1950 amendment. In my opinion, it is just as plain, in view ■of said amendment, that the Legislature ■could ignore Article 23, Section 7, supra, in devising ways and means of providing ■death benefits under our Workmen’s Compensation Law as it was held to be under the 1913 amendment of the New York Constitution (though I recognize that the New York amendment was worded more fully and explicitly than Oklahoma’s). In this ■connection, see the discussion in Shanahan v. Monarch Engineering Co., 219 N.Y. 469 , 114 N.E. 795, 796-798 , both inclusive. And, to my way of thinking, this is as it should be. In providing employees’ dependents with this new remedy for obtaining recompense for their deaths, without the necessity of proving negligence on the part ■of their employers, or being subject to the usual defenses applicable to tort, or wrongful, death actions, such as assumption of risk and contributory negligence, the Legislature has bestowed upon them, by. enacting H.B.No.312 (S.L.1951, pages 267-270, incl.) a simple, less formal, and more expeditious way of proceeding than was ever known to this jurisdiction before that enactment. Even though this new remedy is exclusive for deaths in hazardous occupations, and includes those caused by the employer’s negligence, as well as those that would not otherwise be actionable — this still does not make it the “right of action” referred to in Art. 23, sec. 7, supra, for that “right of action” was one to which assumption of risk was a good defense. It is incomprehensible to me that this court can distinguish the basis of Workmen’s Compensation claims from a “right of action”, and call it merely a “right to an award” in some cases, yet fail to make that distinction here. In this connection, see Herndon v. Dolton Barnard Hardware Co., (Okl.) 264 P.2d 723 , and the discussion and cases therein. To support my opinion that Art. 23, section 7, supra, was never intended to apply to anything except tort actions for wrongful death (recognized by our statutes at the time that provision was adopted), I refer to this court’s opinions in Weatherman v. Victor Gasoline Co., and Capitol Steel & Iron Co. v. Fuller, both cited in the majority opinion. In the first cited case, after referring to the history of our statutory provisions, this court, concerning our Workmen’s Compensation Act, said: ( 130 P.2d 527, 531 ): “It * * * covered a field of liability not comprehended by that statute (Tit. 12 O.S.1941 and 1961 § 1053) namely, liability for injuries to employees independent of damages occasioned by death” (Emphasis mine). That the general scope of the Workmen’s Compensation Law has not changed, nor the “right to an award” (Herndon v. Dolton Barnard Hardware Co., supra) therein provided, yet been brought into the same category with' the “right of action to recover damages for injuries resulting in death * * (Art. 23, Sec. 7, supra) is further evidenced by this court’s statement in the Capitol Steel & Iron Company case ( 245 P.2d 1134, 1139 ) that: “No cause of action for death is created by Art. XXIII sec. 7, (original *789 ly or as amended) or by the Workmen’s Compensation Law * * *. This last mentioned law does not and cannot create either. * * * ” (Emphasis mine). It is appropriate and proper that, in granting a deceased employee’s dependents this new remedy, or “right to an award”, the Legislature could prescribe conditions, restrictions and/or limitations governing its invocation. Thus, in addition to limiting the amount that could be awarded on death benefit claims, the Legislature also had the power to place a limitation on the time within which they could be filed, and to name and define those who could maintain them. Such conditions to obtaining those benefits have, in the wisdom of the Legislature, been prescribed by Tit. 85 O.S.1961 § 22, subdiv. 7. I think their prescription is a valid exercise of legislative authority, and should be upheld by this, court. For us to emasculate from the death benefits portion of the Workmen’s Compensation Law the condition that the death for which this new benefit is provided, must occur within five years from the date of the accident, is, in effect, to legislate — and to render incomplete, an otherwise comprehensive legislative scheme, or plan, under which1 both claimants and employers forego certain rights they would have in tort actions in return for an expeditious way of handling claims arising out of accidental deaths in the special category of hazardous employments. The majority opinion leaves proceedings for death benefits under the Workmen’s Compensation Law without even the two-year-after-death limitation period prescribed for wrongful death actions. See Tit. 12 O.S.1961 § 1053. Without any limitation on the time within which such Industrial Court proceedings may be filed, it is readily conceivable that some may be filed as long as 20 to 30 years after the accident. It is easy to see that the effects of this will be varied, far-reaching and revolutionary. For the foregoing reasons, I respectfully dissent. / --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9545065. Public record. Not legal advice.