E. M. Mildred Agency v. Yates

PER CURIAM.

This matter originated with the hearing before the Industrial Commission on the sole issue as to the right of respondent Yates to receive continued payments for temporary total disability.

The record discloses that on the 22nd day of March, 1946, while in the employ of petitioner, respondent sustained serious personal injury as a result of a car accident. He was paid compensation by petitioner up to and including June 15, 1946, when payments were discontinued. Respondent then filed his application before the commission for-the purpose of determining his right to continued payments for temporary total disability.

The commission found in favor of the claimant and awarded him compensation.

Petitioner contends that the evidence is insufficient to sustain the finding of the commission that respondent was engaged in a hazardous employment at the time he sustained his injury, and that the commission was therefore without jurisdiction to award compensation or to retain the case for the purpose of determining the extent, if any, of the permanent disability.

The evidence shows that petitioner is engaged in conducting a sales agen,cy for the sale of scales; that he sells at retail to users only and makes no sales to dealers. The evidence also shows that in connection with his sales agency he maintains a repair shop for the purpose of repairing scales; that he keeps and maintains in the repair shop such machinery and appliances as to constitute a “workshop” within the meaning of the law. 85 O.S. 1941 §2.

Respondent had been an employee of petitioner for some time and was a skilled mechanic. It was insisted, on the one hand, that he was hired primarily as a mechanic in the repair department and that he served as a salesman on occasions or part of the time. On the pther hand, it was insisted that he was hired primarily as a salesman and that he worked in the repair shop on occasions or part of the time. It is undisputed that for his monthly wage or salary he performed services in both departments, but we deem it wholly unnecessary to determine for which service he was primarily hired, as the test is not so much what he was hired to do, but rather what he was doing or at what task he was employed when injured. And we deem it immaterial whether he spent more time working in the one or the other of the departments. There is no controversy as to where he was or how he was employed at the time of his injury, as the following facts reveal.

Petitioner several days prior to the accident obtained an order from Kelly’s Creamery at Elk City, Okla., for the purchase of a platform scale. The sale was consummated and the scales were delivered to the creamery company at Elk City. A pit was prepared by the creamery company for the purpose of installing the scales. Respondent was directed by petitioner to go to Elk City to supervise the installation of the scales. His duties were to see that the pit had been properly prepared and to level up and balance the scales. It was necessary that he take tools with him to accomplish this purpose. The tools consisted of a wrench, screw driver and weights with which to balance the scales, and a small hand drill which was power driven. Respondent as directed placed the necessary tools in a pickup truck belonging to petitioner and started to drive in the truck to Elk City for the purpose of overseeing the installation of the scales. While on his way he became involved in a car accident resulting in his injury.

Petitioner points out that the respondent at the time he sustained his injury was performing services solely in connection with and incident to the sales branch or part of his employment, not a hazardous employment by statute, and that the commission was therefore without jurisdiction to award compensation.

Respondent contends that the evidence shows that the work necessary to be performed by respondent in installing the scales constituted mechanical work and labor in connection with and incident to the work of the repair shop or workshop. With this contention we do not agree. The repair shop was established and operated to repair used and worn scales, and the work to be performed by respondent in installing, as in the instant case, was not in the repair shop or workshop and was not a part of nor incident to or connected with the work of the repair shop or workshop.

It is well established that the same employer may conduct different branches or departments of business, some of which fall within the Workmen’s Compensation Act, and some of which do not. Southwestern Cotton Oil Co. v. Spurlock, 166 Okla. 97, 26 P. 2d 405; Chatham v. Arrow Drilling Co., 183 Okla. 243, 80 P. 2d 944, and King v. Carl B. King Drilling Co., 194 Okla. 71, 147 P. 2d 463.

While respondent at the time he sustained his injury was engaged in performing manual and mechanical labor, he was not performing such labor in connection with any industry, plant, factory or trade defined as hazardous by the Workmen’s Compensation Act. 85 O.S. 1941 §2. He was therefore not entitled to recover compensation. Furrow & Co. v. Miller, 188 Okla. 199, 107 P. 2d 193; City of Hobart v. Wagoner, 191 Okla. 689, 132 P. 2d 926; Jones & Spicer v. McDonnell, 164 Okla. 226, 23 P. 2d 701; King v. Carl B. King Drilling Co., supra, and Ferris v. Bonitz, 149 Okla. 129, 299 P. 473.

Findings and order vacated.

BAYLESS, CORN, GIBSON, ARNOLD, and LUTTRELL, JJ., concur. HURST, C.J., DAVISON, V.C.J., and RILEY, J., dissent.