Pryse Monument Co. v. District Court of Kay County

A worker, injured on the job May 23, 1975, proceeded in the State Industrial Court for an award against his uninsured employer whose business was within the purview of the Workmen’s Compensation Act. The claim was held barred by one-year statute of limitations. In this proceeding the employer seeks prohibition against the worker’s prosecution of a subsequent district court suit, brought timely within two years, to recover damages in tort for the same injury.

One who sustains an on-the-job injury while employed in a business which remains impermissibly uninsured though it is governed by the Workmen’s Compensation Act has been given two distinct remedies for vindication of his single, statutorily-conferred right to recover. One of these is by claim in the State Industrial Court and the other by district court action in tort based on negligence (with some defenses being denied to the employer). The two remedies available are separate, alternative, mutually exclusive and cognizable in different forums. They are governed by distinctly varying theories and measures of recovery. These very characteristics combine to make the two remedies “coexisting but inconsistent” as distinguished from “concurrent and consistent”. The pursuit of one will preclude simultaneous prosecution of the other. Were suits pursuing both remedies pending at the same time, one of them, at claimant’s election, would be abatable as vexatious. The abatement’s inchoate bar becomes absolute and conclusive when the remedy, once chosen has been pursued to a point of conclusion. That point is reached at the first suit’s termination whether by recovery or its denial. Waiver by election will preclude the claimant from vexing the employer with a second suit. Once a remedy is chosen and then pursued to conclusion, the point of no return is reached although there has been no satisfaction, much less vindication, of the right. Three essential elements, all present here, must coincide to make preclusion through waiver by prior election of remedies applicable: (a) two or more remedies must be in existence (b) the available remedies must be inconsistent (c) choice of one remedy and its pursuit to conclusion must be made with knowledge of alternatives that are available. The preclusion is effective even though the chosen action or suit failed because it had not been timely brought. In Assessment Bond Service v. W. R. Johnston & Company, Okl., 296 P.2d 959, 964 (1956) we settled this principle in clear and unmistakable terms. Therein we said that

“ ‘Where a plaintiff has elected one of two remedies for the enforcement of a right, and such action is barred by the statute, he is bound by his election and cannot thereafter resort to the other remedy for which a different limitation is provided.’ ” (emphasis supplied)

Neither our holding in Williams v. Okl. Nat. Stockyards Co., Okl., 577 P.2d 906 (1978) nor its conceptual underpinnings will afford any semblance of validity to the notion that the cited decision stands as authority for allowing a subsequent district court action in every case where the prior “compensation claim failed other than on the merits . . . ”. Williams dealt with a worker who was not in hazardous employment and hence had only one remedy to choose. We held he could institute his district court action within one year after the order which held there was no industrial jurisdiction over his claim. Williams is easily distinguishable from the present case. Although he had but one procedural course for vindication of his single right, he timely invoked the unavailable remedy. Because he was timely in the wrong court, he brought himself within the purview of 12 O.S.1971 § 100, which enlarges regular limitations by an additional year when an action fails “otherwise than on the merits”. Here, the worker’s claim was not timely, though the forum he initially chose was right and available. Moreover, he had an unimpaired choice of two remedies. In short, Williams is “wide of the mark”.

Neither can the preclusion by prior election by avoided by invoking the familiar principle that a statute of limitations bars only the remedy and not the right itself. The right left here to the worker is termed at common law “a mere right” — an unenforceable claim that has been detached from remedy. Until reunited with an available, viable remedy, “mere right” is not capable of vindication. It would take some affirmative act or waiver of the employer to resurrect the remedy lost to the worker here.

The worker’s district court action in negligent tort stands barred by waiver through prior conclusive election of another remedy. The result here, harsh though it may appear, tracks, with fidelity, the beaten path of long-established precedent. Fundamental fairness in litigation process cannot be afforded except within a framework of orderly procedure. No area of the law may lay claim to exemption from the range of its basic strictures — not even the workers’ compensation law. Chaos, caprice and ad hoc pronouncements would inevitably follow from any departure.

“ * * * It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law. * * ” [Emphasis added]

Let the writ issue prohibiting respondents from proceeding further in cause No. C — 77— 90PC on the docket of the District Court, Kay County.

LAVENDER, C. J., IRWIN, V. C. J., and WILLIAMS, BARNES and HARGRAVE, JJ., concur.

HODGES, SIMMS and DOOLIN, JJ., dissent.

. Now Workers’ Compensation Court, effective 7-1-78.

. Now Workers’ Compensation Law, effective 7-1-78.

. 85 O.S.1971 § 43.

. 12 O.S.1971 § 95(3).

. 85 O.S.1971 § 12; Ice v. Gardner, 183 Okl. 496, 83 P.2d 378 (1938); Eagle Creek Oil Co. v. Gregston, 99 Okl. 181, 226 P. 339 (1924).

. 85 O.S.1971 § 12; Marrs v. Richardson, 184 Okl. 342, 87 P.2d 131 (1939); Ice v. Gardner, supra note 5.

. Haggard v. Calhoun, Okl., 294 P.2d 836, 837 (1956); McAlester Corp. v. Wheeler, 205 Okl. 446, 239 P.2d 409, 411 (1951); Dixie Cab Company v. Sanders, Okl., 284 P.2d 421 (1955).

. H. L. Hutton & Co. v. District Court of Kay County, Okl., 398 P.2d 530, 533 (1965); Haggard v. Calhoun, supra note 7.

. A suit may be abated because another is pending where both are between the same parties and relief sought is for the same event or transaction. Vexatiousness follows from multiplicity of suits. Oklahoma Press Pub. Co. v. Gulager, 168 Okl. 245, 32 P.2d 723, 725 (1934); Myers v. Garland, 122 Okl. 157, 252 P. 1090, 1092 (1927). Where full relief may be obtained in both actions, one will be abated. Phillips v. Barker, Okl., 269 P.2d 337, 339 (1954).

. H. L. Hutton & Co. v. District Court of Kay County, supra note 8; Haggard v. Calhoun, supra note 7; see cases cited in note 7.

. H. L. Hutton & Co. v. District Court of Kay County, supra note 8.

. Dudley v. King, Okl., 285 P.2d 425, 427 (1955); H. L. Hutton & Co. v. District Court of Kay County, supra note 8.

. The terms of 12 O.S.1971 § 100 provide in pertinent part:

“If any action be commenced in due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits . . . ” (emphasis added) a new action may be commenced within one year after failure of the initial one.

.Jus memm is the original Latin term by which old English law referred to a “mere or bare right” — the jus proprietatis — which is without either possession or even the right of possession. 2 Bl.Comm. 197; Bract, fol. 23; Stolfa v. Gaines, 140 Okl. 292, 283 P. 563, 567 -570 (1930); Opala, Praescriptio Temporis and its Relation to Prescriptive Easements in the Anglo-American Law, 7, Tulsa L.J. 107-109 (1971).

Justice Jackson aptly described the Anglo-American concept of limitations in Chase Securities Corporation v. Donaldson, 325 U.S. 304, 313, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945) in these words:

“Statutes of limitations always have vexed the philosophical mind for it is difficult to fit them into a completely logical and symmetrical system of law. There has been controversy as to their effect. Some are of opinion that like the analogous civil law doctrine of prescription limitations statutes should be viewed as extinguishing the claim and destroying the right itself. Admittedly it is troublesome to sustain as a ‘right’ a claim that can find no remedy for its invasion. On the other hand, some common-law courts have regarded true statutes of limitation as doing no more than to cut off resort to the courts for enforcement of a claim. We do not need to settle these arguments.” [footnotes omitted]

. Payment or provision of medical attention would be effective to toll limitations under 85 O.S.1971 § 43. Smedley v. State Industrial Court, Okl., 562 P.2d 847 (1977). Failure to assert the defense of election of remedies would be effective to reunite “mere right” with its district court remedy. Miller v. Roberts, 140 Okl. 271, 282 P. 1104, 1106 (1929).

. Joint Anti-Fascist Refugee Committee v. McGrath, (Douglas, J., concurring) 341 U.S. 123, 179, 71 S.Ct. 624, 652, 95 L.Ed. 817 (1951).