Christensen v. Sikora

• Decision Date: 22 April 1941
• Docket Number: 2195
• Citation: 112 P.2d 557,57 Wyo. 57
• Parties: CHRISTENSEN, STATE TREASURER, v. SIKORA
• Court: Wyoming Supreme Court

112 P.2d 557

57 Wyo. 57

CHRISTENSEN, STATE TREASURER, v. SIKORA

No. 2195

Supreme Court of Wyoming

April 22, 1941

APPEAL from the District Court, Sheridan County; JAMES H. BURGESS Judge.

Proceeding under the Workmen's Compensation Law by Tony M. Sikora claimant, employed by the Red Owl Stores, Incorporated. From an order in favor of the claimant, Mart T. Christensen, State Treasurer of the State of Wyoming, as the official charged with the duty of making payments of awards from the Workmen's Compensation Fund, appeals.

Affirmed.

For the appellant there was a brief by Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, of Cheyenne, and oral argument by Mr. Kline.

The decision of the trial court was based upon two grounds: (1) That the grocery store where the employee was employed was a workshop where machinery is used; (2) The employee was required to wait on trade in both the meat market and the grocery store. The former being an extra-hazardous employment, the employee was entitled to compensation, even though he was injured in the non-hazardous employment. A grocery store containing as its only piece of power driven machinery a small coffee grinder is not an extra-hazardous employment subject to the provisions of the Workmen's Compensation Law of this state. Sec. 124-104, R. S. The words "grocery" or "grocery store" have a clear- definite meaning. The amendment bringing into the compensation law the phrase "workshop where machinery is used," was intended to be restricted to its natural meaning and not to be used as a catch-all phrase, by which all other employments would be included under the Act. Baldwin v. Roby, 54 Wyo. 439. The interpretation of a statute by a department charged with its administration is of some value. Equitable Assurance Co. v. Thulemeyer, 49 Wyo. 63; Lamont v. Realty Company, 48 Wyo. 56; Berry v. Johnson, 87 P.2d 1082. A drug store containing a refrigerator operated by electric power is not a workshop. Mobley v. Brown, 2 P.2d 1034. A janitor injured in an elevator shaft was held not entitled to compensation on the theory that he was injured in a workshop. Remsnider v. Union Savings & Trust Co., 154 P. 135. The presence of power driven machinery in a hotel does not make it a workshop. Surety Corporation v Commission, 60 P.2d 1036; Simms v. Hospital (Okla.) 69 P.2d 1040; Bus Terminal v. Stone, 18 P.2d 1057; Hoffman v. Hazelwood (Ore.) 10 P.2d 349. Liberal construction does not mean a strained or forced construction of a statute. Rumley v. District, 57 P.2d 283. A volunteer is not entitled to benefits under the compensation law. 71 C. J. 497. An employee engaged part of the time in a hazardous employment and part of the time in a non-hazardous employment is not entitled to compensation if injured while engaged in the non-hazardous employment. Leslie v. City of Casper, 42 Wyo. 44. It is doubtful whether the employee spent one tenth of one per cent. of his time in the meat market. This case differs from the Leslie case on the facts. All of the courts hold that a person injured in a workshop is entitled to compensation, whether injured by use of the machinery or not. 71 C. J. 364. Grocery stores are not listed as extra-hazardous. If Sikora had been injured through the negligence of a fellow employee, under circumstances making his employer liable in an action at law, he could bring an action at law and could also claim compensation, if the decision of the court below be affirmed. The Legislature has designated meat markets as hazardous employments but has declined to declare a grocery store a hazardous employment. Can the courts disregard this distinction and say that a grocery store and a meat market constitute but one employment? The proof in this case is that claimant's duties performed in the meat market were all non-hazardous, since it appears from his own testimony that he never operated the meat grinding machine or cut meat. His duties were purely clerical. Sec. 124-106, subsection (1). The case of Byas v. Hotel Bentley, Inc. (La.) 103 So. 303, cited in the Ideal Bakery case, was one where the employee performed hazardous and non-hazardous duties, yet the Louisiana Courts have subsequently held that where an employee engages only in non-hazardous duties the doctrine of Byas v. Hotel Bentley did not apply. Gray v. Tremont Lumber Co. (La.) 185 So. 314; Caldwell v. Sproull Co. (La.) 164 So. 652. The Oklahoma courts make the same distinction. Grocery Company v. Commission (Okla.) 205 P. 929; Stores v. Morehead (Okla.) 5 P.2d 1066.

For the respondent, the cause was submitted on the brief of N. V. Kurtz of Sheridan.

The respondent contends that it was established by the evidence in this case that he was injured in a particular place, at a particular time, and that it was reported; that the nature of the injury was hernia; that the nature and place of employment was hazardous. Proof of over-exertion is sufficient to support an award. 71 C. J. Sec. 373; Livingston v. Comm. (Utah) 251 P. 368; Surety & Ins. Co. v. Comm., 271 P. 67; Paccardi v. Pub. Service Comm. (W. Va.) 1916 L. R. A. 299; In re Petrie (N. Y.) 109 N.E. 549. Section 124-104, R. S., as amended by Chapter 118, Laws 1939, defined extra-hazardous occupation. Section 124-105, R. S. defines occupations that are excepted from the operation of the law. Grocery stores as such are not excluded. This court in the case of In re Byrne, 56 P.2d 1095 indicated the method to be taken in extending the benefits of the Compensation Act and cited with approval decisions from a number of other states. In re Petrie (N. Y.) 109 N.E. 549. Chapter 128, Sec. 2, Laws of Wyoming 1937 defines workshops. We believe the contentions of the claimant are supported by the facts in the case of Ideal Bakery v. Schryver, 43 Wyo. 109; Pace Co. v. State (Okla.) 296 P. 456. In the case of Sunshine Stores v. Moorehead, 5 P.2d 1066, the employer retailed both meats and groceries, and operated power driven machinery in his meat market. Claimant was injured in non-hazardous employment and was awarded damages, which award was affirmed by the Supreme Court. A similar state of facts is reported by the case of Eckhardt v. Jones Market (Ore.) 209 P. 470, where an award made for injuries was sustained by the Supreme Court. The doctrine relating to power driven machinery and hazardous and non-hazardous employment in the same business is reviewed in 71 C. J., Sections 77 and 78, pp. 364, 365. We have carefully read the citations of authority presented in the brief of appellant, but we do not believe that they support his contentions. Neither do we believe that department rulings are controlling as to persons involved in compensation claims. We believe that the controlling cases or case before the court are Associated Seed Growers, Inc. v. Scrogham (Wyo.) 73 P.2d 309 and Ideal Bakery v. Schryver, 43 Wyo. 108, 299 P. 283.

RINER, Chief Justice. KIMBALL, J., concurs. BLUME, J., concurring.

OPINION

RINER, Chief Justice.

This litigation arises under and involves the proper construction of certain words and clauses of the Workmen's Compensation Law of this State. The district court of Sheridan County made an award for temporary total disability in favor of Tony Sikora, hereinafter usually mentioned as the "claimant". Neither the employer nor the claimant has in any manner questioned the award thus made, but direct appeal proceedings in this matter brought it here, at the instance of the State Treasurer, Mart T. Christensen, the official charged with the duty of making payments of awards from the Workmen's Compensation fund and who is herein represented by the Attorney General, his Deputy and his Assistant. The appellant will generally hereinafter be so designated or by his official title, the "Treasurer".

Generally speaking the facts are not greatly in dispute, and are briefly these: Claimant was employed as a grocery clerk and to wait on ranch trade by the Red Owl Stores, Inc., which conducted a combined retail meat and grocery business on a main floor in a building and in the basement underneath. The main floor had two rooms, a larger room where the principal work of both the grocery and meat market was carried on and a smaller room back of the larger, which was used as a storeroom, as was the basement. Claimant was engaged on either February 20 or 21, 1940, in lifting a number of one hundred pound bags of salt in the basement, carrying them to and up a stairway to a waiting truck belonging to a ranch outfit and on which truck the bags were loaded. Aiding in this work was one Belmont, an assistant meatcutter, and also the ranch employee driver of the truck. After a number of bags had been loaded claimant picked up another one which slipped, and using claimant's own words as given on the witness stand, "as it slipped on me I grabbed it and I dropped the sack and had a pain in my side. I sat down and stayed there until they finished loading the salt". The injury sustained by claimant in consequence of this accident was later diagnosed as hernia. He had previously suffered a hernia and had undergone an operation, which was successful and the wound had properly healed.

In the larger room mentioned above, the front end thereof was devoted to displaying and selling groceries, while back of that but in the same room was a counter with a case in which meat and non-perishable cheese and butter were kept and over which meat was sold. Back of this counter were meat blocks and certain machines, all driven by electric power. In the large room, where all the employees of the Red Owl Stores, Inc., were engaged in their work, there were: a coffee grinder, run by an electric motor, for the convenience and use of the grocery part of...