City of Tulsa v. Wilkin

• Decision Date: 01 February 1949
• Docket Number: Case Number: 33233
• Citation: 205 P.2d 295,1949 OK 12,201 Okla. 299
• Parties: CITY OF TULSA v. WILKIN
• Court: Oklahoma Supreme Court

1949 OK 12

205 P.2d 295

201 Okla. 299

CITY OF TULSA v. WILKIN

Case Number: 33233

Supreme Court of Oklahoma

Decided: February 1, 1949

Syllabus

¶0 1. WORKIMEN'S COMPENSATION - Burden upon claimant to prove he is in class embraced within provisions of law.

Our Workmen's Compensation Law is remedial in its objects and operation, and should receive a liberal construction in favor of those entitled to its benefits; but before one is entitled thereto he should be held to strict proof that he is in a class embraced within the provisions of the law, and nothing can be presumed or inferred in this respect.

2. SAME - Engineer surveying and marking out line for placing cable for telephone company, held not employee of city engaged in hazardous employment.

An engineer employed by the city of Tulsa to survey and mark out a line for the placing of a cable for a telephone company is not an employee of said city engaged in hazardous employment within the meaning of 85 O. S. 1941 §§ 2 and 3, under the facts and circumstances of this case.

Original proceeding in the Supreme Court brought by City of Tulsa, a municipal corporation, petitioner, to review an award made to Frank S. Wilkin, respondent. Award vacated, with directions.

R.L. Davidson, Jr., City Atty., and John T. Harley, B.M. Risinger, and Robert L. Wheeler, Asst. City Attys., all of Tulsa, for petitioners.

M.C. Spradling, of Tulsa, and Mac Q. Williamson, Atty. Gen., for respondents.

WELCH, J.

¶1 On the 18th day of July, 1944, Frank S. Wilkin as claimant sustained an accidental injury when he was struck by a U.S. Army motor truck while engaged in his employment with the city of Tulsa. After conducting proceedings to determine the cause and extent of disability resulting from the accidental injury, the State Industrial Commission entered an award for claimant finding that by reason of said accident he had sustained a 75 per cent permanent partial disability and entered an award for payment accordingly. This proceeding is brought to review the award.

¶2 The cause and extent of the disability is not questioned.

¶3 In six propositions petitioner raises the single issue that the employment of claimant was not hazardous. It is therefore necessary to determine the nature of claimant's employment.

¶4 We have held that the court, in reviewing an award of the State Industrial Commission, will not accept as conclusive the findings of fact of the State Industrial Commission concerning a jurisdictional question, but on review will weigh the evidence relating thereto and make its own independent findings of fact with relation thereto. Chatham v. Arrow Drilling Co., 183 Okla. 243, 80 P.2d 944; Chicago Pneumatic Tool Co. v. McGrew, 178 Okla. 439, 63 P.2d 749; McKeever Drilling Co. v. Egbert, 170 Okla. 259, 40 P.2d 32. In Harris v. Oklahoma Natural Gas Co., 91 Okla. 39, 216 P. 116, it is stated:

"Our Workmen's Compensation Law is remedial in its objects and operation, and should receive a liberal construction in favor of those entitled to its benefits; but before one is entitled thereto he should be held to strict proof that he is in a class enbraced within the provisions of the law, and nothing can be presumed or inferred in this respect."

See, also, Chatham v. Arrow Drilling Co., supra; Southland Refining Co. v. State Industrial Commission, 167 Okla. 3, 27 P.2d 827; Mobley v. Brown, 151 Okla. 167, 2 P.2d 1034.

¶5 Construction and engineering works is mentioned in 85 O. S. 1941 § 2. Claimant asserts that the rule applied in Denbo v. Roark, 196 Okla. 386, 164 P.2d 977, applies here. In that case, after referring to the pertinent portions of the statute, the court stated:

"The business of the respondent is not one of the industries, plants, factories, lines, occupations or trades mentioned in section 2, supra, as a hazardous employment but under the facts the respondent has elected to operate its business in such a way as to bring a portion of its business under said section governed by the phrase 'hazardous employment' as defined above."

¶6 The only evidence as to the employment is the evidence of the claimant and the assistant city manager. It is not in substantial conflict. It was to the effect that the city of Tulsa desired to lay concrete on some of the driveways to be used by the taxies and other vehicles in the operation of its airport; that for this purpose it had hired a contractor to complete this operation. In connection therewith it was determined that it would be for the benefit of the airport to lay a concrete apron for parking purposes on one portion of the airport. In order to complete this project it was necessary for the Southwestern Bell Telephone Company to have a survey made of an underground cable so that if anything happened to the underground cable a new cable could be laid in the same or approximate location. This concrete work was never done or completed and no cable was laid, but in order that the Southwestern Bell Telephone Company might have the necessary information the assistant city manager sent claimant, an assistant city engineer, to the location to take field notes and map out the location for the proposed cable. It was while he was in the position of kneeling...