American Radiator Standard & Sanitary Corp. v. Schrimsher

• Decision Date: 13 April 1943
• Docket Number: 31199.
• Parties: AMERICAN RADIATOR STANDARD & SANITARY CORPORATION et al. v. SCHRIMSHER et al.
• Court: Oklahoma Supreme Court

136 P.2d 893

192 Okla. 418, 1943 OK 136

AMERICAN RADIATOR STANDARD & SANITARY CORPORATION et al. v. SCHRIMSHER et al.

No. 31199.

Supreme Court of Oklahoma

April 13, 1943

Rehearing Denied May 11, 1943.

Syllabus by the Court.

1. The manufacturer's repair and reconstruction of radiators heating appliances, and equipment theretofore installed in a building is one of the businesses, trades or employments enumerated in and defined as hazardous by the Workmen's Compensation Act, 85 O.S.1941 § 2.

2. Where an employment is one of those enumerated in and defined as hazardous by the statute and the relation of employer and employee is shown to exist a presumption arises that any accidental injury received by said employee arises out of and in the course of such employment and is one covered by the provisions of the Workmen's Compensation Act.

3. Whether an employee engaged in manual or mechanical labor is entitled to compensation depends primarily upon whether the business of the employer is a hazardous one within the definition of that term as given in the Workmen's Compensation Act; 85 O.S.1941, § 1 et seq., and secondarily upon whether the injury for which compensation is sought arose out of and in the course of the employment and not upon the particular type of work the employee may have been doing when injured.

Original proceeding in the Supreme Court by the American Radiator Standard and Sanitary Corporation, employer, and the Hartford Accident & Indemnity Company, insurance carrier, to review an award of compensation made by the trial commissioner and affirmed by the State Industrial Commission in favor of J. H Schrimsher, compensation claimant.

Award sustained.

Looney Watts, Fenton & Eberle, of Oklahoma City, for petitioners.

Claud Briggs, of Oklahoma City, and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

This is an original proceeding in this court brought by American Radiator and Standard Sanitary Corporation, hereinafter referred to as petitioner, and its insurance carrier to obtain a review of an award which was made by a trial commissioner and on appeal affirmed by the State Industrial Commission in favor of J. H. Schrimsher, hereinafter referred to as respondent.

The record shows that on June 29, 1942, respondent filed with the State Industrial Commission employee's first notice of injury and claim for compensation for disability which had resulted from an accidental personal injury sustained on May 18, 1942, and in which notice R. A. Brown, dba No-Kol Automatic Heating Company was named as permanent employer and petitioner as temporary employer. The permanent employer denied liability for the reason that on the day the injury occurred the relation of master and servant did not exist between respondent and said employer and for the further reason that respondent was then in the employ of the petitioner. The petitioner denied liability for the reason that there was absent the relation of master and servant and also for the reason that the employment in which the respondent sustained his injury was not a compensable employment within the terms of the Workmen's Compensation Act, 85 O.S.1941 § 1 et seq. The trial commissioner conducted hearings to determine liability and extent of disability. The evidence adduced at the hearings so held disclosed that respondent was a regular employee of R. A. Brown, dba No-Kol Automatic Heating Company but that on the date the accident occurred was in the temporary employ of the petitioner. The evidence further discloses that petitioner while engaged in the manufacture of radiators, heating equipment and other appliances at various points outside of the State of Oklahoma was not so engaged anywhere within the State and that it had employed respondent, with the consent of his employer, on May 18, 1942, to repair a heating furnace which respondent had manufactured some years previously and which had been sold and installed in a building occupied by an automobile sales agency by a jobber who had bought the equipment from the petitioner.

Under the facts substantially as above narrated the trial commissioner found that the relation of master and servant did not exist between respondent and R. A. Brown dba No-Kol Automatic Heating Company on the 18th day of May, 1942, but that on said date respondent was an employee of the petitioner and was engaged in an employment which came within the terms of the Workmen's Compensation...