Opinion
No. 24519
November 14, 1933.
(Syllabus.)
Master and Servant — Workmen's Compensation — Review by Supreme Court — Vacation of Award Upon Confession of Error.
Where a confession of error is filed in this court, and the court upon an examination of the record finds that the confession of error in which it is admitted that an award of the State Industrial Commission should be vacated is well taken, the award will be vacated in accordance therewith.
Original action in the Supreme Court by Henry (Happy) Fields et al. to review an award of the State Industrial Commission in favor of T.W. Mitchell. Award vacated.
Counts Counts, for petitioners.
Jack Bradley and Claud Briggs, for respondent T.W. Mitchell.
This is an original proceeding instituted in this court for the purpose of obtaining a review of an order and award of the State Industrial Commission.
The respondent T.W. Mitchell was the claimant before the State Industrial Commission, and the petitioners herein together with the McAlpine Coal Company were the respondents. On the 20th day of February, 1933, after a hearing before the Commission, an order and award was rendered in favor of the claimant and against the petitioners and the McAlpine Coal Company for temporary total disability. The petitioners have instituted this action in this court without being joined by the McAlpine Coal Company. It appears from an examination of the record that the only connection which the petitioners have is that they were stockholders in the Security Mining Company and that the Security Mining Company was the owner of the mine in which the accidental injury occurred to the claimant. Claimant was employed by the McAlpine Coal Company, which had leased the mine and the machinery therein used from the Security Mining Company. The claimant has filed a confession of error in this court in which it is conceded that the relationship of employer and employee did not exist between the claimant and the petitioners, and that the award entered was incorrect in so far as the petitioners are concerned.
Upon examination of the record, we are convinced that the confession in error is well taken, and that the award should be vacated in so far as it affects the petitioners in this proceeding. The award is vacated as to Henry (Happy) Fields, G.A. Riedt, and Sam Mitchell.
RILEY, C. J., and SWINDALL, McNEILL, OSBORN, and BAYLESS, JJ., concur. CULLISON, V. C. J., and ANDREWS and WELCH, JJ., absent.