Bishop v. Wilson

• Decision Date: 17 February 1931
• Docket Number: Case Number: 21434
• Citation: 147 Okla. 224,1931 OK 37,296 P. 438
• Parties: BISHOP et al. v. WILSON et al.
• Court: Oklahoma Supreme Court

1931 OK 37

296 P. 438

147 Okla. 224

BISHOP et al. v. WILSON et al.

Case Number: 21434

Supreme Court of Oklahoma

Decided: February 17, 1931

Syllabus

¶0 1. Master and Servant--Workmen's Compensation Law--Presumption as to Hazardous employment.

Under the Workmen's Compensation Act (paragraph 1 of section 7295, C. O. S. 1921) providing that there shall be a presumption that a claim comes within the provisions of the act in the absence of substantial evidence to the contrary, the Industrial Commission must presume that the business conducted by the employer was within the provisions of the act defining hazardous employments in the absence of such substantial evidence.

2. Same--Burden of Proof as to Cause of Loss of Eye.

The claimant was struck in the eye by a foreign substance while filling a casing with air and the substance was removed with a towel taken from the wash room of the filling station. Later his eye became infected and the eyeball had to be removed. There is no presumption that the loss of his eye was the result of the original injury received by him. The burden is on him to establish by competent evidence that the loss of the eye came from a disease or infection as may naturally result from the original injury.

Original proceeding by Bell Bishop, doing business as Bishop Tire & Service Company, and insurance carrier to review an award by the State Industrial Commission in favor of John Wilson. Affirmed.

Owen & Looney, Paul N. Lindsey, and J. Fred Swanson, for petitioners.

J. Berry King, Atty. Gen., and Mike Foster, for respondents.

HEFNER, J.

¶1 This is an original proceeding to review an award of the State Industrial Commission wherein it found that John Wilson, one of the respondents herein, had sustained an accidental personal injury arising out of and in the course of his employment in a hazardous occupation. It further found that by reason of the injuries the respondent. John Wilson, had lost the sight of his left eye and that he was totally disabled from December 7, 1929, to January 21, 1930, and ordered the petitioners to pay the respondent compensation for 100 weeks for the loss of his left eye and for the period of 5 weeks and 5 days for compensation for temporary total disability.

¶2 The petitioners at the time of the accident were running a gasoline filling station and a shop where automobile tires and tubes were repaired. The filling station was a two-room building with three gasoline pumps. The air came from a compressor. One of the rooms was used for a repair shop. The respondent was putting air in a tire that he had repaired; the air was coming from a compressor. The tire blew out, throwing a small substance about the size of a pin head in his left eye. He immediately went into the wash room and one of his associates took a towel that had been used by the public generally and removed the substance from his eye. The accident occurred on December 5th; he worked until about 9 o'clock p. m. on that day, he returned to work on the 6th. He went to a doctor at noon on the 6th and again on the 7th. The doctor sent him to the hospital, and it was discovered that he had a gonorrheal infection in his eye. He stayed at the hospital 21 days, after which he went home for about three weeks, and he went back to the hospital and it was necessary to remove the ball of the eye.

¶3 The petitioners urge that there is no evidence that the filling station and repair shop is a workshop where machinery is used, as defined by the Industrial Act. For the first time our attention is called to paragraph 1 of section 7295, C. O. S. 1921, and it now becomes our duty to interpret its meaning. The section is as follows:

"Certain presumptions in absence of evidence.--In any proceeding for the enforcement of a claim for compensation under this act, it shall be presumed in the absence of substantial evidence to the contrary:

"1. That the claim comes within the provisions of this act."

¶4 A similar provision is contained in the New York Industrial Act, and the Court of Appeals of New York construed it in the Matter of Larsen v. Paine Drug Co., 218 N.Y. 252, 112 N.E. 725. In that case the evidence disclosed that the employer conducted a wholesale and retail drug store. The employee was engaged in the capacity of "porter, elevator, and handy man," and his work consisted of the ordinary work of a porter and elevator man; he took in freight and packed the goods to be sent out by freight or express, drew acids, did carpenter work and various small repairs, and in fact all the various and varied work that an unusually intelligent handy man could do about the drug store. In the body of the opinion the court said:

"It is now urged that it did not appear, first, that the employer was carrying on the hazardous business indicated in group 28, or, second, that the deceased at the time of his death was engaged in any work in the course of or connected with such hazardous employment, even though said business was carried on by the employer. It may be assumed that the statements made by the employer and taken into account in making the finding that it was engaged in carrying on the hazardous business in question are not conclusive. It is possible that, if the Commission had been compelled to base a finding solely on said statement, it would not have been strictly justified in drawing the conclusion that the employer was doing anything more than conducting a store for the wholesale and retail sale of drugs and chemicals. But the statute declares that there shall be a presumption that such a claim as this comes within the provisions of the statute 'in the absence of substantial evidence to the contrary.'

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