Baker v. State Indus. Comm'n

• Court: Oklahoma Supreme Court
• Writing for the Court: REID, C.
• Citation: Baker v. State Indus. Comm'n, 1929 OK 322, 280 P. 603, 138 Okla. 167 (Okla. 1929)
• Decision Date: 17 September 1929
• Docket Number: Case Number: 20034
• Parties: BAKER v. STATE INDUSTRIAL COMMISSION et al.

1929 OK 322

280 P. 603

138 Okla. 167

BAKER v. STATE INDUSTRIAL COMMISSION et al.

Case Number: 20034

Supreme Court of Oklahoma

Decided: September 17, 1929

Syllabus

¶0 1. Master and Servant--Workmen's Compensation Law--Compensable Injuries Required to "Arise out of," and Occur "in the Course of" Employment.

"Under Comp. Stat. 1921, section 7285, a compensable accidental injury must disclose from its circumstances the existence of two essential elements: It must have resulted 'in the course of' employment and it must also have arisen 'out of' the employment. The absence of either of these essential elements destroys the 2. Same--Injuries from Cyclone Occurring While Employee Was Returning from Place of Work Held not to Have Arisen out of His Employment.

An employee was returning from a place where he had performed a service covered by the conditions of his employment. And when being met by a cyclone he sought refuge in a building situated near the road he was traveling, the building was destroyed by the storm, and the employee was thereby injured. The peril of the employee at that time was no greater than that common to all persons within the territory of the storm. His employment neither caused nor contributed to the injury; therefore, the injury did not arise out of his employment; hence, it was not compensable under the Workmen's Compensation Law of this state.

Commissioners' Opinion, Division No. 1.

Original action in Supreme Court by French Baker to review an order of the State Industrial Commission denying his application for compensation under the Workmen's Compensation Law from E. G. Fuqua and insurance carrier. Affirmed.

Clay Snodgrass, for petitioner.

Edwin Dabney, Atty. Gen., Ralph G. Thompson, Asst. Atty. Gen., and Clayton B. Pierce, for respondents.

REID, C.

¶1 The only question presented by the record in this case is whether the injury sustained by the claimant, French Baker, arose out of his employment within the meaning of the Workman's Compensation Law of this state. The State Industrial Commission denied his claim for compensation, and he brought action in this court to review the finding and judgment of the Commission.

¶2 The claimant was an employee of E. G. Fuqua, whose place of business was at Altus, Okla. Fuqua had the district agency covering four counties, for the sale of a refrigerating device called a "Frigidaire." One of the duties of claimant, in his employment, was to install or set in operation a Frigidaire when sale had been made by an agent or employee of Fuqua, in any part of the territory. On the 16th day of June, 1928, at the direction of Fuqua, and using Fuqua's automobile as a conveyance, the claimant went to Snyder, Okla., and installed a Frigidaire. Snyder is about 24 miles east of Altus. When about seven miles on his way, returning to Altus, he was met by a cyclone and sought refuge in a church building. The building was destroyed by the cyclone and claimant thereby received the injury for which he asked compensation. The territory covered by the cyclone began about eight miles east of Altus, and having a width of about three miles north and south, it extended from east to west approximately 15 miles. The effect of the cyclone in the territory over which it traveled was disastrous, the evidence showing that more than eight people lost their lives from it.

¶3 The claimant seeks to bring his case within the principles laid down by the Supreme Court of Illinois in the case of Central Illinois Public Service Co. v. Industrial Commission et al., 291 Ill. 256, 126 N.E. 144, 13 A. L. R. 967, wherein a tornado was shown to have blown down the building in which the employee was working. We recognize that the doctrine there announced is the law, and it will be applied when called for by the facts. But the facts in the present case lack an essential element existing in that case. However, in order that it may be understood that we agree that compensation should be allowed under the circumstances there found, and in view of the further fact that the principles of law upon which the liability rests under the Workmen's Compensation Law are there discussed with such clearness, we quote from the opinion as follows:

"The determination of the question whether an injury arises out of the employment is one which is frequently attended with much difficulty--not so much in the determination of the rule, as in the application of the rule to the case under consideration. This court has, in a number of cases, quoted with approval the rule laid down in the McNicol Case, 215 Mass, 497, L. R. A. 1916A, 306, 102 N.E. 697, 4 N. C. C. A. 522. In considering the question whether or not the injury arose out of the employment, the Supreme Court of Massachusetts there said: 'It "arises out of" the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment, but it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected; but, after the event, it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational con-consequence.'" * * *

"We believe the reasonable rule to be that if deceased, by reason of his employment, was exposed to a risk of being injured by a storm which was greater than the risk to which the public in that vicinity was subject, or if his employment necessarily accentuated the natural hazard from the storm, which increased hazard contributed to the injury, it was an injury arising out of the employment, although unexpected and unusual. An injury, to come within the Compensation Act (Laws, 1913, p. 335) need not be an anticipated one, nor, in general, need it be one peculiar to the particular employment in which one is engaged at the time. While the risk arising from the action of the elements, such as a cyclone, is such a risk as all people of the same locality are subjected to, independent of employment, yet the circumstances of a particular employment may make the danger of receiving a particular injury through such storm an exceptional risk, and one to which the public generally is not subjected. Such injury may be then said to arise out of the employment. In the instant case, while the risk of being injured by this cyclone may be said to have been a risk common to the public in the vicinity of such cyclone, regardless of employment, yet, if there was, in the circumstances of Kilgore's employment, an unusual risk or danger of injury from the destruction by storm of the building in which he was employed, such risk may be said to be incident to the employment of the deceased, and the injury received to arise out of such employment. Deceased at the time the storm broke was engaged in assisting and directing the closing up of the plant of defendant in error. These duties took him among the steam pipes and ammonia coils, which subjected him to an unusual risk of being injured from escaping steam and ammonia fumes, should the building be destroyed by storm. The evidence shows that the ammonia fumes and scalding steam contributed most largely to the injuries which caused his death. We are therefore of the opinion that there were in the circumstances of the employment of the deceased risks of being injured by the storm not common to the public in that vicinity, and the circuit court therefore erred in setting aside the award."

¶4 And the foregoing doctrine is supported by the following other cases cited by the claimant, viz.: Merrill v. Penasco Lumber Co., 27 N.M. 632, 204 P. 72; Aho v....