Brister v. Barton & Rich Drilling Co., 37166

• Decision Date: 17 April 1956
• Docket Number: No. 37166,37166
• Citation: 297 P.2d 405
• Parties: O. M. BRISTER, Petitioner, v. BARTON AND RICH DRILLING COMPANY, Tri-State Insurance Company and the State Industrial Commission, Respondents.
• Court: Oklahoma Supreme Court

Page 405

297 P.2d 405

1956 OK 134

O. M. BRISTER, Petitioner, v. BARTON AND RICH DRILLING COMPANY, Tri-State Insurance

Company and the State Industrial Commission, Respondents.

No. 37166.

Supreme Court of Oklahoma.

April 17, 1956.

Syllabus by the Court.

The question of whether an injury arose out of and in the course of employment is one of fact to be determined by the Industrial Commission under the circumstances of each particular case, and where there is any testimony reasonably tending to support its finding, it will not be disturbed on an application to vacate an order denying an award.

Original proceeding brought by O. M. Brister, Claimant, to review an order of the State Industrial Commission denying an award in a proceeding against Barton and Rich Drilling Company, Employer, and Tri-State Insurance Company, Insurance Carrier. Order sustained.

Fermon Hatcher, Pauls Valley, James R. Eagleton, Oklahoma City, for petitioner.

Ross & Holtzendorff, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.

HALLEY, Justice.

On June, 15, 1955, O. M. Brister, hereinafter called claimant, filed his first notice of injury and claim for compensation stating that on June 3, 1955, he sustained an accidental injury arising out of and in the course of his employment with Barton and Rich Drilling Company. On the 22nd day of November, 1955, the trial commissioner denied an award. This proceeding is brought by claimant against the employer and its insurance carrier, hereinafter called respondents, to review the order denying an award.

The order denying the award in part is as follows:

'That claimant voluntarily engaged in a fist fight with his driller and his injury, if any, did not result from an accidental personal injury arising out of and in the course of his employment, therefore, his claim for compensation is hereby denied.'

Claimant testified that he was in the dog house eating a sandwich at approximately 12:30 P.M. when H. D. Fox, the driller, came in and started a conversation about arrangements for driving cars to work and during the conversation called claimant a liar and doubled up his fist and they started fighting. Fox grabbed a lantern and started to hit claimant. Finally claimant was thrown from the platform of the drilling rig to the ground by Fox. The platform was four feet high. When he was thrown to the ground he sustained an injury to his back. Claimant further stated that he does not know who struck the first blow. The fight consisted of three encounters. There were no witnesses to the first encounter except the participants but the last two encounters were witnessed by the remaining members of the crew who testified in the proceeding. After the second encounter the driller stated to claimant that he was fired. The tool pusher interfered in the final encounter and the fight ended.

Fox disputed the testimony of claimant as to the manner in which the fight commenced and testified that he, Fox, went into the dog house to caution claimant about wasting time on the job, especially spending too much time eating while the tool pusher was around and that claimant grabbed a lantern and started the fight. We think it unnecessary to review any more of the evidence relating to the three encounters between the driller and claimant for claimant asserts he was injured in the first encounter.

The question presented is whether there is any competent evidence reasonably tending to support the finding of the State Industrial Commission that cla...