Foree, In re, 36599

Decision Date19 July 1955
Docket NumberNo. 36599,36599
Citation289 P.2d 649
PartiesIn the Matter of the Death of Thomas Albert FOREE. BLACK, SIVALLS & BRYSON, Inc., Petitioner, v. Frances M. H. FOREE, Administratrix, and State Industrial Commission, Respondents.
CourtOklahoma Supreme Court

Syllabus by the Court

Where an employee's duties are essentially professional or clerical in nature, but require him, as incidental thereto, to transport himself from one place to another by automobile, such use of the automobile does not transform his employment from non-hazardous to a hazardous one and thereby bring it within the operation of the Workmen's Compensation Law. In the present case, it is further held that on the basis of the evidence the employer was not estopped, under 85 O.S.1951 § 65.2 et seq., and the Industrial Commission's Rule 24, to deny that such employee's employment was within the operation of said Compensation Law.

Original proceeding brought by Black, Sivalls & Bryson, Inc., to review an award of the State Industrial Commission awarding compensation to dependent heirs of Thomas Albert Foree, deceased. Award vacated.

Withington, Shirk, Nichols & Clifford, Oklahoma City, for petitioner.

George E. Fisher, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.

Covington & Donovan, Tulsa, amicus curiae.

BLACKBIRD, Justice.

In this case it appears that on October 8, 1953, Thomas Albert Foree, while in the employ of Black, Sivalls and Bryson, Inc., hereinafter referred to as petitioner, sustained an accidental injury arising out of, and in the course of, his employment, resulting in his death.

Thereafter, Frances M. H. Foree, surviving widow of deceased, was duly appointed administratrix of his estate and on January 29, 1954, filed a claim for compensation in her behalf as an individual and, in behalf of her two minor daughters, to recover compensation against petitioner under the Death Benefit Provision of the Workmen's Compensation Law, Tit. 85 O.S.1951 § 22, subd. 7.

At the close of the evidence, the trial commissioner found, in substance: that on October 8, 1953, Thomas Albert Foree, while in the employ of petitioner sustained an accidental injury arising out of and in the course of his employment, resulting in his death; that he came to his death as the result of an automobile accident when he drove his automobile against a bridge abutment; that deceased left surviving him as his sole dependent heirs Frances Foree, his wife, Margaret Ann and Frances Elizabeth, minor daughters; that Frances Foree is the duly qualified and acting administratrix of the estate of deceased and that by reason of the accidental injury sustained by Thomas Albert Foree, resulting in his death, his dependent heirs are entitled to recover compensation against petitioner in the sum of $13,500 to be distributed as stated in the findings. In accord with these findings, the Commissioner entered an award that was sustained on appeal to the Commission en banc.

Petitioner herein seeks a review of said award, contending that it is not supported by the evidence and is contrary to law.

The evidence shows that petitioner is and was, at the time of the accident, engaged in the manufacture and sale of certain oil field equipment. It maintained separate and distinct divisions of such business, one for manufacturing, the other for sales. Mr. Foree, now deceased, was employed in the manufacturing division.

The plant manager testified, in substance, that Foree was manager of the 'Production Control Department', which was a part of the manufacturing division, and had the responsibility of scheduling production through the shops or plants; that Foree was in charge of that department in October, 1953, until the time of his death, with about ten employees under him; that said employees were classified in manufacturing as 'Production Planners'; that Production Control comes 'into the picture' after the engineering department has done its work and the Inventory Control has checked available materials and the job is ready to be released for fabrication; that Production Control is normally furnished with the estimated man hours required to build a job, as well as the required delivery date, by the Estimating Department; that the process did not require the head of the department, or any of the Production Planners to go into the plants where the products were being manufactured or fabricated.

The witness further testified however that deceased, on occasion, did enter the plant where production occurred; that he did so in order to obtain information as to the condition of the plant and the amount of equipment which could be manufactured in a day with the crew then on hand; that it was his duty to obtain this information in order to determine whether the articles of equipment ordered could be manufactured in time for delivery on the delivery date stated in the order, and, if ascertaine that it could not be manufactured by that time, it was hid duty to contact other plants and endeavor to have the articles manufactured at them.

Several days prior to the 7th day of October, 1953, it was ascertained that some articles had been ordered that could not be manufactured at the Oklahoma City plant; and, on the 8th day of October, 1953, deceased went to Wichita, Kansas, to contact a manufacturing plant there to ascertain whether it could manufacture the articles in question. He made the trip by automobile owner by petitioner, and at the expense of petitioner. On his return trip, when the automobile he was driving hit the abutment of a bridge, he sustained the accidental injury with resultant death, involved here. The plant manager testified that it was not necessary for deceased to make the trip to Wichita; that he should have contacted the Wichita plant by telephone; that it was not part of his duty nor would his employment require, that he make such trip. It further appears, however, that on several other occasions Foree did make such trips and that petitioner always paid his expense thereon. It was the usual practice, however, when necessary to contact other plants to manufacture articles for the Oklahoma City plant, to do so by telephone.

The evidence further shows that deceased was not a mechanic; that he was not qualified to do skilled labor and that while working at the plant he never performed either manual or mechanical labor.

Petitioner contends that deceased was not engaged in the performance of manual or mechanical labor immediately prior to the time he sustained the accidental injury resulting in his death and was therefore not engaged in a 'hazardous employment' as that term is defined by Tit. 85, O.S.1951 § 3. Said definition is as follows:

"Hazardous employment' shall mean manual or mechanical work or labor, connected with or incident to one of...

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