Updike Advertising System v. State Indus. Com'n

• Decision Date: 01 February 1955
• Docket Number: No. 35637,35637
• Citation: 282 P.2d 759,1955 OK 19
• Parties: UPDIKE ADVERTISING SYSTEM, Inc., and The Hardware Mutual Casualty Company, a corporation, Petitioners, v. STATE INDUSTRIAL COMMISSION, and Susan Updike, for herself and as mother and next friend of James Updike and Jeffrey Updike, minors, Respondents.
• Court: Oklahoma Supreme Court

Page 759

282 P.2d 759

1955 OK 19

UPDIKE ADVERTISING SYSTEM, Inc., and The Hardware Mutual Casualty Company, a corporation, Petitioners, v. STATE INDUSTRIAL COMMISSION, and Susan Updike, for herself and as mother and next friend of James Updike and Jeffrey Updike, minors, Respondents.

No. 35637.

Supreme Court of Oklahoma.

Feb. 1, 1955.

Rehearing Denied March 29, 1955.

Application for Leave to File Second Petition for Rehearing

Denied May 3, 1955.

Syllabus by the Court

1. Where the evidence amply sustains the finding of the Industrial Commission that a decedent, though an executive officer of the respondent company, was an employee engaged in mechanical and manual labor and that his accidental death arose out of and within the scope of his employment in an industry covered by the Workmen's Compensation Law, same will not be disturbed by this court in an original action brought for the purpose of reviewing the order of the Commission.

2. The Workmen's Compensation Law as amended by House Bill No. 312, Session Laws 1951, requires employers covered by the Act to provide insurance against accidental death arising out of and in the course of hazardous employment, or pay the death benefit if they carry their own risk. Such insurance or the obligation to pay said death benefit if the employer is a carrier of his own risk is in the nature of accidental death insurance. The right of subrogation against a third-party tort-feasor never existed in favor of an employer or insurance carrier. Specific provision therefor would have to be made by the Legislature for same to exist. There is no such provision.

Original action to review an award of the Industrial Commission made to the dependent heirs of James M. Updike, deceased, under the death benefit provisions of the Workmen's Compensation Act. Award sustained.

Houston, Klein, Melone, & Davidson, Henry Kolbus, Tulsa, for petitioners.

Young, Young & Young, Sapulpa, Mac Q. Williamson, Atty. Gen., for respondents.

Paul W. Updegraff, Norman, George Bingaman, Purcell, Paul Pugh, C. W. Schwoerke, Oklahoma City, amici curiae.

ARNOLD, Justice.

This is an original proceeding brought by Updike Advertising System, Inc., and its insurance carrier to review an award made under the death benefit provisions of the Workmen's Compensation Law, 85 O.S. 1951 § 1 et seq., to the dependent heirs, consisting of the widow and minor children, of the deceased employee of said advertising company, James M. Updike.

The evidence is not in conflict and is as follows:

Updike Advertising System, Inc., was a family corporation, all of its stock being owned by the deceased, his mother and two brothers. James M. Updike, deceased, was the president and manager of said company and assisted in the making, repairing, and inspecting of the outdoor billboards manufactured by said company; on June 15, 1951, deceased, his wife and child, and his mother started an automobile trip in a company-owned car for the purpose of inspecting and repairing billboard signs of the company in both Oklahoma and Iowa; proper tools, paint, and equipment were carried in the car for the purpose of making such repairs; near Sapulpa another automobile struck the automobile which deceased was driving, killing him instantly; James M. Updike was listed on the contract of insurance issued by the insurance carrier herein to the corporation providing for coverage on liabilities incurred by said corporation under the Workmen's Compensation Law and his employment and compensation therefor was used and considered in determining the amount of premiums charged by said insurance carrier and paid by said respondent corporation.

Claimant herein, the dependent widow of James M. Updike, deceased, filed an action for wrongful death in the District Court of Creek County on behalf of herself and minor children against the driver of the other automobile; that action was settled by an agreed judgment for $10,000 and costs and that judgment had been fully satisfied prior to the hearing before the Industrial Commission on claimant's death benefit claim, though the record does not show how the amount of the judgment was disbursed or the amount of attorney fees paid for prosecution of the claim for wrongful death.

The trial Commissioner on February 26, 1952, entered an order finding that at the time of his death deceased was engaged in a hazardous employment subject to and covered by the Workmen's Compensation Law; that his death arose out of and in the course of such employment; that claimant and the two minor children were the sole and only dependent heirs of said deceased, and entered an award in their favor in the amount of $13,500. On appeal to the Commission en banc the award was affirmed. The employer, Updike Advertising System, Inc., and its insurance carrier, The Hardware Mutual Casualty Company, bring this proceeding for a review of that award.

Petitioners contend that the deceased was not engaged in an employment covered by the Workmen's Compensation Law at the time of his death because his work was merely executive in nature. An officer in a corporation may serve both as an officer and workman under circumstances making him an employee within the meaning of the Workmen's Compensation Law and, if he sustains injuries while performing duties in the latter capacity, he is entitled to compensation under said act. Southern Surety Co. v. Childers, 87 Okl. 261, 209 P. 927, 25 A.L.R. 373. The business of an outdoor advertising company in making, altering, or repairing outdoor billboards constitutes the 'alteration or repair of structures' within the meaning of the provision of the Compensation Act defining the alteration of 'structures' as hazardous. Switzer Advertising Co. v. White, 188 Okl. 567, 111 P.2d 815. An employee who is employed in a hazardous employment and has duties partly clerical and partly manual and mechanical is covered, though his duties for the most part be clerical. Mason Lumber Co. v. Andruss, 188 Okl. 365, 110 P.2d 605; it is the nature of the employment in which the employee is engaged, rather than the specific act which he may be performing at the time of an injury, which determines his right or lack of right to compensation under the Workmen's Compensation Act. Pawnee Ice Cream Co. v. Price, 164 Okl. 120, 23 P.2d 168; Sheffield Steel Corporation v. Barton, 183 Okl. 624, 84 P.2d 17. The evidence shows that the deceased's work was partly executive and partly manual and mechanical; that he assisted when needed in the repair and manufacture of billboards; that he often made inspection trips, such as the one he was engaged in at the time of his death, to check on the condition of the billboards of the company and made any such repairs as were needed; that he was carrying proper tools, paint, and other equipment for this purpose in the company car at the time of his death; that the primary reason for the trip was to check on the condition of and make repairs to the company's billboards. Under the rules above announced the Commission's finding that at the time of his death deceased was engaged in a hazardous occupation covered by the Workmen's Compensation Act and that his death resulted from an accidental injury arising out of and in the course of his employment is sustained by competent evidence, and such finding, being one of fact and amply sustained by the evidence, will not be disturbed by us. Oklahoma Gas & Electric Co. v. Santino, 158 Okl. 70, 12 P.2d 221.

Petitioners next contend that where a claimant for death benefits has made a recovery against a third party for the wrongful death of the decedent the employer and insurance carrier are entitled to credit for such recovery on the death benefit award; they contend that 85 O.S. 1951 § 44(b), which specifically provides:

'There shall be no subrogation to recover money paid by the employer or his insurance carrier for death claims or death benefits under this Act from third (3d) persons * * *'

is unconstitutional in that it deprives them of their property without due process of law and is violative of Article II, Section 7 (due process) and Article II, Section 23 (private property shall not be taken without compensation) of the Oklahoma Constitution and Section 1 of the 14th Amendment to the Constitution of the United States (the due process clause).

Some basic, pertinent and controlling facts should be kept in mind.

All employers in businesses falling within the purview or categories of the Workmen's Compensation Law must carry insurance to pay liabilities thereunder or get permission to carry their own risk. Liability under the act requires only a showing that at accidental event occurred causing a certain loss or decreased earning capacity by reason of such loss to a specific member of the body catalogued in the act. All common-law defenses are taken away from the employer and his insurance carrier and no negligence need be shown. In other words, the employer must insure against loss, and the insurance company who contracts to pay is in the same position as an insurance company insuring the life of an individual or insuring against accidental injury to an individual. There would be no subrogation without statutory provision. Such subrogation was provided by the Legislature in the original Workmen's Compensation Act as to the only liability provided therein and that was for loss of earning capacity by reason of injury to specific members of the body or permanent total disability. Without this provision no employer and no insurance carrier would have had subrogation. 58 Am.Jur. Sec. 358, page 818; Larson's Workmen's Compensation Law, Vol. 2, Sec. 74.11; State ex rel. Industrial Commission v. Pressley, 74 Ariz. 412, 250 P.2d 992; 46 C.J.S., Insurance, § 1209; 29 Am.Jur. 1340; Crab Orchard Improvement Co. v. Chesapeake & Ohio Railroad Co., 4 Cir., 115 F.2d 277, certiorari denied 312 U.S. 702, 61 S.Ct. 807, 85 L.Ed. 1135; Maryland Casualty Co. v. Paton, 9...