Marr v. American Flyers Airline Corp.

• Decision Date: 09 July 1968
• Docket Number: No. 42329,42329
• Citation: 443 P.2d 961
• Parties: Frances MARR, Executrix of the Estate of Wilbur A. Marr, Dec'd, Plaintiff in Error, v. AMERICAN FLYERS AIRLINE CORPORATION, a corporation, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 961

443 P.2d 961

1968 OK 100

Frances MARR, Executrix of the Estate of Wilbur A. Marr, Dec'd, Plaintiff in Error, v. AMERICAN FLYERS AIRLINE CORPORATION, a corporation,

Defendant in Error.

No. 42329.

Supreme Court of Oklahoma.

July 9, 1968.

Syllabus by the Court

1. The Oklahoma Workmen's Compensation Law, 85 O.S.1961, § 1 et seq., is remedial in its objects and operation, and should receive a liberal construction in favor of those entitled to its benefits; but before one is entitled thereto he should be held to strict proof that he is in a class embraced within the provisions of the law, and nothing can be presumed or inferred in this respect.

2. The provisions in 85 O.S.1961, § 2, of the Workmen's Compensation Law, designating as a hazardous employment, 'motor vehicles operating as motor carriers for the transportation of passengers or property for compensation' does not include aircraft operating as carriers, and the pilots or co-pilots of such aircraft are not covered by the Workmen's Compensation Law.

Appeal from the District Court of Oklahoma County, A. P. VanMeter, Judge.

Appeal from an order dismissing action for wrongful death on ground that lower court had no jurisdiction of action because deceased was in an employment covered by Workmen's Compensation Law. Reversed with directions.

John D. Cheek, Alex Cheek, of Cheek, Cheek & Cheek, Oklahoma City, Earl Q. Gray, Ardmore, for plaintiff in error.

Watts, Looney, Nichols & Johnson, by Burton J. Johnson, Oklahoma City, for defendant in error.

Harry L. Bickford, of Wallace & Bickford, Ardmore, amici curiae.

DAVISON, Justice.

Frances Marr, Executrix of the Estate of Wilbur A. Marr, Dec'd, (plaintiff below) appeals from an order dismissing her action for damages against American Flyers Airline Corporation (defendant below) for the wrongful death of her husband.

Plaintiff's petition and amendment to petition alleged her husband was employed by the defendant as a full-time transport pilot to perform the duties of a co-pilot and first officer on commercial transport aircraft, with no ground duties as a mechanic or laborer; that deceased was not an aircraft instructor and was not employed by a 'manufacturing company of aircraft;' and that because of certain alleged negligence and wrongful conduct of the defendant the aircraft crashed in Carter County, Oklahoma, causing the death of plaintiff's decedent, and injuring and killing the crew members and passengers aboard the aircraft. The defendant filed a special appearance and plea that the court had no jurisdiction of the matter for the reason the deceased was an employee of defendant at the time of the accident and plaintiff was confined and limited to the exclusive remedies provided by the Workmen's Compensation Law (85 O.S.1961, §§ 11 and 12) for the injuries and death. The lower court sustained the plea of no jurisdiction and dismissed the action.

The allegations of the petition present the question of whether, under the described circumstances, the pilot or co-pilot of a commercial aircraft engaged in transporting passengers for compensation are subject to the provisions of the Workmen's Compensation Law.

At this point we call attention to the rules of law set forth in Cooper v. Oklahoma City, Okl., 361 P.2d 483, as follows:

'In order for the State Industrial Court to have jurisdiction to award compensation to an employee and against an employer for an accidental personal injury arising out of and in the course of his employment, such employment must be in one of the industries, plants, factories, lines, occupations or trades mentioned in 85 O.S.Supp.1959, § 2; or the facts must bring the branch or department of the business under said section governed by the phrase 'hazardous employment', as defined in 85 O.S.1951, § 3, as amended.

'Our Workmen's Compensation Law is remedial in its objects and operation, and should receive a liberal construction in favor of those entitled to its benefits; but before one is entitled thereto he should be held to strict proof that he is in a class embraced within the provisions of the law, and nothing can be presumed or inferred in this respect.'

Title 85 O.S.1961, § 2, of the Law provides in part as follows:

'Compensation provided for in this act shall be payable for injuries sustained by employees engaged in the following hazardous employments, to wit: Factories, * * * and work shops where machinery is used; * * * motor vehicles operating as motor carriers for the transportation of passengers or property for compensation, * * *'

The latter quoted portion of § 2, concerning motor vehicles, was incorporated in the Law by a 1941 amendment.

There are no words in § 2, or in § 3 of the Law defining words and terms appearing therein, that specifically name or refer to aircraft and the pilots and crew operating them as constituting a hazardous employment included in the Law. Section 3 does not define 'motor vehicles.' The answer to the above question depends on whether the words 'motor vehicles' includes and covers aircraft.

In 8 Am.Jur.2d, Aviation, § 20, p. 638, there is the following statement:

'An airplane is in a class by itself. It has usually been held, in the absence of any express provisions on the subject calling for a different conclusion, not to be within the terms 'vehicle,' 'motor vehicle,' 'vessel,' or the like. There is said to be no synonym for word 'airplane' which can be used interchangeably with it, as the words 'car' and 'automobile' are used synonymously when speaking of motor-driven cars or vehicles which run on the ground.'

In 2 C.J.S. Aerial Navigation § 34, pp. 912, 913, it is stated:

'An airplane has been held not to be a 'motor vehicle' within a law relating to the transportation of a motor vehicle, knowing it to have been stolen, in interstate or foreign commerce; * * *'

In the Annotation captioned 'Airplane as within terms 'vehicle,' 'motor vehicle,' etc.' appearing in 165 A.L.R. 916, is the following statement:

'Although the result is always contingent on the particular wording involved, it has been almost invariably held, in the construction of statutes and regulations, that airplanes are not within the terms 'vehicles,' 'motor vehicles,' etc.'

McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816, (1931) involved theft of an airplane and conviction for transporting it in interstate commerce in violation of Act of Congress of October 29, 1919, c. 89, 41 Stat. 324, which stated 'motor vehicle' included an automobile, automobile truck, automobile wagon, motorcycle, 'or any other self-propelled vehicle not designed for running on rails; * * *.' The issue was whether the statutory language was sufficient to cover an airplane. The opinion states that the quoted phrase 'calls up the popular picture' and continues as follows:

'* * * For after including automobile truck, automobile wagon and motorcycle, the words 'any other self-propelled vehicle not designed for running on rails' still indicate that a vehicle in the popular sense, that is a vehicle running on land is the theme. It is a vehicle that runs, not something, not commonly called a vehicle, that flies. * * *'

and further:

'* * * When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft simply because it may seem to us that a similar policy applies, or upon the speculation that if the legislature had thought of it, very likely broader words would have been used.'

To conform to the court ruling Congress in the definition of 'Motor Vehicle' substituted 'designed for running on land but not on rails' for the words 'not designed for running on rails.' In 1945 Congress amended the above Act to include 'Aircraft' and defined the term to mean 'any contrivance now known or hereafter invented, used, or designed for navigation of or for flight in the air.' 18 U.S.C.A. § 2311.

A similar development took place in Oklahoma. Our statute, 21 O.S.1961, § 1720, as originally enacted in 1919, provided that it was a felony for a person to 'steal an automobile or other automotive driven vehicle.' In an amendment to the statute in 1945 'aircraft' was added to the list as subject to the provisions of this section.

These statutes reflect that in the field of criminal law an aircraft has a status different from those self-propelled vehicles ordinarily regarded as falling within the classification of 'Motor vehicle' and 'automotive driven vehicle.' This distinction as to aircraft is also apparent in statutes dealing with civil matters.

In 3 O.S.Supp.1963, § 82, of the Aeronautics Commission Act, is this definition of Aircraft:

'(b) 'Aircraft' means any contrivance now known, or hereafter invented, used, or designed for navigation of or flight in the air or airspace.'

The term 'motor vehicle' is defined in 68 O.S.Supp.1965, § 2101 (formerly 47 O.S.Supp.1963, § 21--101) of the Vehicle Excise Tax Code, as follows:

'(a) The term 'motor vehicle' means and includes every automobile, truck, truck-tractor, or any motor bus or any self-propelled vehicle Not operated or driven upon fixed rails or tracks or In the air or on water.' (emphasis supplied)

In 47 O.S.Supp.1965, § 161, dealing with Regulation of Motor Carriers we find the following definition:

'(a) The term ...