Anderson v. Allis-Chalmers Mfg. Co.

• Decision Date: 08 October 1963
• Docket Number: ALLIS-CHALMERS,No. 40048,40048
• Citation: 1963 OK 222,387 P.2d 479
• Parties: Emma Leona ANDERSON, Petitioner, v.MANUFACTURING COMPANY, a corporation, Aetna Casualty & Surety Company, a corporation, and State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 479

387 P.2d 479

1963 OK 222

Emma Leona ANDERSON, Petitioner, v. ALLIS-CHALMERS MANUFACTURING COMPANY, a corporation, Aetna Casualty & Surety Company, a corporation, and State Industrial Court, Respondents.

No. 40048.

Supreme Court of Oklahoma.

Oct. 8, 1963.

Rehearing Denied Dec. 17, 1963.

Syllabus by the Court

1. Whether an injury to an employee, resulting in his death, arose out of and in the course of employment is a question of fact to be determined by the State Industrial Court from proof adduced in particular proceeding, and its finding thereon will not be disturbed on review when supported by competent evidence.

2. Held, under the facts and circumstances of this case, the death of the employee did not arise out of and in the course of his employment.

Original proceedings by Emma Leona Anderson, claimant, to review an order of the State Industrial Court denying an award against Allis-Chalmers Manufacturing Company, and its insurance carrier, Aetna Casualty & Surety Company. Order sustained.

Fred Hammer and Walter M. Powell, Oklahoma City, for petitioner.

Ross, Holtzendorff & Hurd and Jay R. Bond, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

This is an original proceeding brought by Emma Leona Anderson (claimant), widow of Holly L. Anderson (employee), to review an order of the State Industrial Court denying an award in a proceeding under the Death Benefit Provisions of the Workmen's Compensation Law, 85 O.S.1961 § 1 et seq. An award was first entered by the trial judge, but on appeal to the Court en banc the award was vacated and the order denying the award was entered.

Holly L. Anderson was a salaried employee of Allis-Chalmers Manufacturing Company, whose job was to repair and service Allis-Chalmers farm machines. He lived in Oklahoma City, and worked out of the Oklahoma City branch office of Allis-Chalmers. The territory of said office was most of the State of Oklahoma and certain counties of the State of Arkansas. On Friday, October 28, 1960, Anderson left Oklahoma City to make a call in Leedey, Oklahoma, at the place of business of S. F. Creach, an agent of Allis-Chalmers, for the purpose of making repairs on an Allis-Chalmers machine. Upon the completion of this service call, Anderson had permission from the Oklahoma City office to go from Leedey to New Mexico on a deer-hunting vacation. Also, he informed witness Creach, at Leedey, that he had some vacation coming and was going from Leedey to New Mexico 'to shoot him a deer.' Ordinarily Anderson did not work on Saturdays or Sundays. He was expected to return to Oklahoma City for work on the following Thursday, November 3, 1960.

After performing the work for Creach during the morning of October 28, 1960, Anderson left Leedey shortly before noon, driving his own car in which was his personal luggage, his service tools, one or two guns, and some pamphlets and catalogues. He next arrived at the ranch home of a long time friend, Jerry Sparlin, near Hayden, New Mexico, in the afternoon. He stayed overnight at the home of the Sparlins, and on the next day (Saturday, October 29, 1960), moved some steers for Sparlin from one pasture to another and helped around the ranch house because of illness of Sparlin, until about 5:00 o'clock P.M. at which time he left the Sparlin ranch in his automobile, driving north on State Highway No. 18, and about thirty minutes later, as the result of a one car accident, was found dead on said Highway, about one and one-third miles south of Stead, New Mexico.

In support of her claim the claimant urges two propositions, the first of which stated, as follows:

'In considering a jurisdictional question, the Supreme Court may review the whole record, irrespective of findings of the Industrial Court, and form its own conclusions as to the facts and law.'

It is stipulated by the parties that the only question in this case is whether or not the accidental death of the employee, Anderson, arose out of or in the course of his employment. There was no question of jurisdiction before the Industrial Court, but only the question of fact as stated in the stipulation of the parties. Claimant cites Karns v. State Industrial Commission, 186 Okl. 186, 97 P.2d 41, and a number of other of our decisions to support her position advanced by this proposition. We have examined the cases submitted, but they are not in point as to the situation here, since all consider definite jurisdictional questions, and in none of them was the question of the scope of employment involved. We have consistently held that whether an injury arises out of and in the course of employment is one of fact. Magnolia Petroleum Co. v. State Industrial Commission, Okl., 361 P.2d 477; Travis v. Oklahoma City Linen Service, Okl., 361 P.2d 182; Scaggs v. Lindsey Well Service, Inc., Okl., 366 P.2d 945. Therefore, this first proposition of claimant is of no weight in determining the correct decision of this case.

The second and final of claimant's proposition is:

'The evidence introduced in the State Industrial Court conclusively showed that the accidental personal injury sustained by the decedent, Holly Anderson, arose out of and in the course of his employment.'

It is the theory of claimant that when Anderson left the Sparlin ranch shortly before his accidental death he was on his way to the place of business of claimant's witness Mitchell, in Dalhart, Texas (45 miles east of the point in New Mexico, where Anderson was killed) to confer with Mitchell about business for respondent, Allis-Chalmers. There was no direct evidence of such intention on the part of Anderson in the record. Mitchell, over the objection of respondents, did testify that a local telephone call came to his office in Dalhart while he was absent, the caller stating to the office boy receiving the call that his name was 'Anderson' and he would see Mitchell 'tomorrow or the next day.' Mitchell further testified that at one time (in the year 1954) he had bought some Allis-Chalmers machinery through the decedent, the billing for which came from the Allis-Chalmers dealer at Mangum, Oklahoma; that he had seen the decedent about July or August, 1960, at Amarillo, Texas, and there discussed with him concerning a small motor for pumping wells and that the next time decedent was 'over here,' he would let Mitchell know about this--'the horse power and so forth,' and that he never saw decedent after the Amarillo conversation, but was expecting him to come by with the information about the motor, and had decedent come by, he would have bought 'a D-6 front and loading blade.'

Claimant introduced in evidence, on the basis of a stipulation, signed by Jerry Sparlin and his wife, detailing the visit of decedent to the Sparlin ranch, his activities there until his departure, about 5:00 o'clock P.M. Saturday, October 29, 1960, their visit to the scene of the accident and finding there decedent's refle. The Sparlings were the last known persons to see the decedent alive, and it is most significant that they make no statement in their affidavit as to where decedent was going.

There was other testimony on the...