Mobley v. Brown

The State Industrial Commission found that Herman Brown on July 4, 1930, "was engaged in the operation of a hazardous industry subject to and covered by the provisions of the Workmen's Compensation Law of the state of Oklahoma, to-wit; delivering for the respondent on a motorcycle. That, arising out of and in the course of such employment with respondent herein, claimant sustained an accidental personal injury while making a delivery on his motorcycle to a customer of respondent's on July 4, 1930, the nature of said injury being a broken right leg and two ribs broken."

The Commission awarded Herman Brown compensation for temporary total disability at the rate of $16.76 per week from date of injury until termination of the disability, or until otherwise ordered, and for medical expenses incurred.

The respondent seeks this review.

The record shows that Paul Mobley, on the date of July 4, 1930, operated a drug store in Oklahoma City, located at 18 Stiles Circle; that Herman Brown was employed in said business to make deliveries from said drug store; that he furnished his own motorcycle for such purposes, that while so engaged in making such deliveries, he ran into a street car and sustained personal injuries.

The issue presented is one of law. Does the employment of a delivery boy for a drug store come within the purview of the Workmen's Compensation Act as defined in sections 7283 and 7284, C. O. S. 1921, as amended by chapter 61, sees. 1, 2, S. L. 1923? We answer the inquiry in the negative. A drug store is not mentioned in the section cited, neither is a deliveryman. It must be borne in mind that the Workmen's Compensation Acts! are in derogation of the common law, and while the law will be given a liberal construction in favor of the class for whom it was apparently enacted to protect, yet the courts are without authority to extend its operation to classes or persons beyond which the Legislature expressly or by implication designated. Mashburn v. City of Grandfield, 142 Okla. 247, 286 P. 789.

"Persons entitled to the benefits of the act should be favored by a liberal interpretation of its provisions, but for this very reason they should be held to strict proof of their title as beneficiaries." Harris v. Okla. Natural Gas Co.,91 Okla. 39, 216 P. 116; Plumb v, Cobden Flour Mills Co. (1914) A. C. 62, Ann. Cas. 1914B, 495; Ponca City v. Grimes,144 Okla. 31, 288 P. 951.

The Legislature having failed to include the employment in a drug store, or the employment of one as a deliveryman, within the classes of employment to which the Workmen's Compensation Act applies, it follows that Herman Brown's cause was not governed by the Workmen's Compensation Act, and the Commission was in error in failing to sustain the motion to dismiss for want of jurisdiction.

It is urged that by reason of section 7295, C. O. S. 1921, this court should indulge the presumption, in the absence of proof to the contrary, that the business of Mobley was a wholesale drug business; that inasmuch as wholesale establishments are within the terms of the Workmen's Compensation Act, the award should be sustained. This we cannot do. Section 7295, C. O. S. 1921, provides for certain presumptions to be indulged in the absence of substantial evidence to the contrary. The only presumption said to be applicable here is "that the claim comes within the provision of this act." Now, there is in the record substantial evidence to the contrary. The whole testimony shows Mobley's place to be a drug store. The word "drug store" has acquired a common acceptation in this state as a retail store, whereas an establishment that deals in the sale of goods in gross to retailers usually is differentiated by use of the word "wholesale." There was evidence of a prescription clerk, and delivery of prescriptions by the injured claimant, which denotes the business as that of an ordinary drug store.

"It seems to be settled * * * that where evidence of a fact capable of proof was not offered * * * because the fact was tacitly and fully conceded, it is too late to raise such a question for the first time on appeal." Union Pet. Co. v. O., N.M. P. Ry. Co., 114 Okla. 21, 242 P. 1027.

It was unquestionably tacitly conceded in the presentation of this, case to the Industrial Commission that the business being conducted by Mobley was a retail drug store.

The fact that power-driven machinery was used (i. e., the motorcycle being drivel by power) does not constitute the drug store a workshop so as to bring it within the provision of the act, nor does the use of electric refrigeration, an ordinary "Frigidaire." Although delivery of prescriptions by motorcycle may, in fact, be hazardous, such employment does not come within the terms of the act until made to do so by statute.

The burden of proof showing jurisdiction of the State Industrial Commission is upon the claimant, and in order to sustain such burden it is incumbent upon the claimant to establish that the employment in which he is engaged is one of those provided for in the act. When such employment is established, then under the provisions of section 7295, C. O. S. 1921, it may be presumed, in the absence of substantial evidence to the contrary, that the employer is carrying on a business that comes within the provisions of the act. But such a presumption is not indulged and cannot be indulged until the jurisdictional fact is established that the employment out of which the injury grew was one of those classes to which the act applies.

The claim is to be dismissed.

HEFNER, CULLISON, SWINDALL, ANDREWS, and McNEILL, JJ., concur. KORNEGAY, J., concurs in conclusion. LESTER, C. J., dissenting. CLARK, V. C. J., not participating.