Dalton Barnard Hardware Co. v. Gates

• Decision Date: 14 March 1950
• Docket Number: No. 33518,33518
• Citation: 220 P.2d 249,203 Okla. 268
• Parties: DALTON BARNARD HARDWARE CO. et al. v. GATES et al.
• Court: Oklahoma Supreme Court

Page 249

220 P.2d 249

203 Okla. 268

DALTON BARNARD HARDWARE CO. et al. v. GATES et al.

No. 33518.

Supreme Court of Oklahoma.

March 14, 1950.

Rehearing Denied July 11, 1950.

Syllabus by the Court.

1. A fall caused by high blood pressure resulting directly from a verbal assault by an employer upon a woman employee in connection with work being done at and upon the job, which fall results in disability to the employee, is an accidental injury arising in the course of and out of the employment, and is compensable under the Workmen's Compensation Act.

2. A separate department of a retail store wherein two or more employees work manufacturing curtains, draperies, and slip covers for sale, and an electrically driven sewing machine is used in the fabrication thereof, is a workshop within the meaning and definition of 85 O.S.1941 § 2.

Cheek, Cheek & Cheek, Oklahoma City, for petitioners.

Claud Briggs, Oklahoma City, for respondent Betty Gates.

Mac Q. Williamson, Attorney General, for respondent, State Industrial Commission.

Keaton, Wells, Johnston & Lytle, Oklahoma City, amicus curiae.

LUTTRELL, Justice.

On February 4, 1948, the State Industrial Commission, sitting en banc, affirmed an award for temporary total disability theretofore made by a trial commissioner, in favor of claimant Betty Gates, against her employer Dalton Barnard Hardware Company and its insurance carrier. Thereupon the employer and its insurance carrier brought this original proceeding in this court to review the award.

Petitioners first contend that the evidence does not support the finding that claimant's injury was accidental, and arose out of and occurred in the course of her employment. From the record it appears that Dalton Barnard Hardware Company is engaged in the retail hardware and furniture business in the city of Holdenville; that its store is located on two floors of the building occupied by it, and that on the second floor of said building it had set apart a portion of the space occupied by it for the purpose of making draperies and slip covers for furniture; that on the date she was injured claimant was engaged in fitting a slip cover upon a chair which had been sent to the hardware store to have a slip cover made for it, and that while engaged in such occupation one of her employers came up and reprimanded her, as she testified, in a loud and hard voice, or, as she put it, 'raged at her'; that she became frightened and fainted and fell, injuring her back; that thereafter she was sent to a hospital and was attended by a physician.

The physician who attended her testified that in his opinion her fainting spell was caused by abnormally high blood pressure; that when he first examined her in the store her blood pressure was extremely high, and that after she regained consciousness at the hospital her temperature was normal and her blood pressure much lower. He testified that he had treated her and examined her subsequent to her injury and that her blood pressure at the times he examined her was normal. He further testified that the only reason he could find for the abnormal elevation in her blood pressure at the time of her injury was excitement, because her blood pressure since then was normal, and that such abnormal elevation of blood pressure in his opinion caused her to faint and become unconscious. That the fall which she sustained injured her back and totally disabled her is not seriously question. Physicians who examined her testified that as a result of the fall she had a spinal injury and was totally disabled; that such disability was temporary, and that she could be cured by an operation.

Petitioners urge that where there is no evidence that the work in which she was engaged subjected the claimant to any serious strain, a stroke which may or may not have been brought on by strain or over exertion is not an injury suffered by accident, citing Schneider's Workmen's Compensation, Vol. 4, p. 475; Marion Machine Foundry & Supply Co. v. Redd, 115 Okl. 30, 241 P. 175; National Biscuit Co. v. Lout, 179 Okl. 259, 65 P.2d 497, and cases from other jurisdictions.

In Marion Machine Foundry & Supply Co. v. Redd, supra, the evidence showed that there was no causal connection between the employment of the claimant and his injury, but that, being subject to epileptic fits, he was seized with one while working and fell in such a way that his hand was burned in a fire nearby. We held that such injury was not compensable.

In National Biscuit Co. v. Lout, supra, and in Phillips Petroleum Co. v. Eaves, 200 Okl. 21, 190 P.2d 462, we held that an injury sustained by claimant, due to no apparent reason or cause, except that he stooped over when reaching for an object, was not within the compensation act.

The instant case is distinguishable from these cases in that the cause of the sudden rise of claimant's blood pressure, as testified to by her and her physician, was excitement brought about by the verbal assault which she testified was made upon her by her employer, which caused her to temporarily lose consciousness and fall, resulting in the injury to her back. There is no testimony in the record that she had theretofore suffered from high blood pressure, and the testimony was that thereafter she did not.

In Pawnee Ice Cream Co. v. Price, 164 Okl. 120, 23 P.2d 168, we held that one injured as the result of an unwarranted physical assault upon him by a fellow employee while engaged in his employment, and who sustained an injury as the result thereof, was injured in the course of his employment within the meaning of the compensation act.

In Northwestern Refining Co. v. State Industrial Commission, 145 Okl. 72, 291 P. 533, we held that a person who while engaged in his work, became frightened by an explosion nearby and jumped from the ladder upon which he was working, sustaining an injury as a result thereof, was whithin the compensation act, although the evidence showed that at the time of his injury he was suffering from an existing nervous condition which made him excitable and easily frightened. We held that the explosion was the cause of his jumping from the ladder, and that the injury sustained as the result thereof was one arising in the course of and out of his employment. This decision was cited with approval in Protho v. Nette, 173 Okl. 114, 46 P.2d 942.

In Winona Oil Co. v. Smithson, 87 Okl. 226, 209 P. 398, 399, we said: 'The term 'accidental injury' as used in the act must not be given a narrow meaning, but, according to the great weight of English and American authorities, the term is to receive a broad and liberal construction, with a view of compensating injured employees, where the injury results through some accidental means, was unexpected and undesigned, or may be the result of mere mischance or of miscalculation as to the effect of voluntary action.'

This definition of an accidental injury has been followed in numerous cases. Ward v. Beatrice Creamery Co., 104 Okl. 91, 230 P. 872; Wilson & Co. v. McGee, 163 Okl. 99, 21 P.2d 25; Special Indemnity Fund v. McFee, 200 Okl. 288, 193 P.2d 301.

Applying the rules announced in these decisions to the facts established in the instant case, we are of opinion that the injury sustained by claimant was an accidental injury, and that it arose out of and in the course of her employment.

Petitioners next contend that the evidence wholly fails to show that claimant at the time of her injury was engaged in a hazardous occupation, and therefore covered by the provisions of the compensation law, citing Herd Hardware Co. v. Kirby, 160 Okl. 2, 15 P.2d 823; Plaza Grill v. Webster, 182 Okl. 533, 78 P.2d 818; McClung v. Colclasure, 197 Okl. 445, 172 P.2d 623, and Hurley v. O'Brien, 192 Okl. 490, 137 P.2d 592.

Claimant relies principally upon Harbour-Longmire-Pace Co. v. State Industrial Commission, 147 Okl. 207, 296 P. 456. Claimant also cites cases such as Beatrice Creamery Co. v. State Industrial Commission, 174 Okl. 101, 49 P.2d 1094, and Voss Brothers Dairy v. Gardner, 195 Okl. 118, 155 P.2d 727, holding that the business of an employer may be conducted in separate departments, some of which come within the act and others which do not.

From the evidence it appears that the manner in which the business of the employer in the instant case was conducted was markedly similar to that which was shown in Harbour-Longmire-Pace Co. v. Industrial Commission, supra. In that case the employer was operating a retail furniture store in the city of Shawnee, in which it kept goods for sale. Also in connection with its business it fabricated or manufactured draperies and curtains from materials on hand, and repaired furniture bought by it for sale, and furniture repossessed by it after having been sold on conditional sale. In its drapery department it had a motor driven ordinary type sewing machine, and in its repair department a large size foot power sewing machine and a paint gun operated by an electric motor. Claimant worked in the department which upholstered and refinished furniture, helped hang draperies and did other work of a similar nature. We held that in so far as it manufactured curtains and draperies the employer in that case was within the terms of the act defining a factory, and that the shop where furniture was repaired and upholstered was a work shop where machinery was used.

In the instant case the evidence shows that claimant was a saleslady in the store; that she also had charge of the branch of the business which fabricated draperies and made and fitted slip covers to furniture. The making of slip covers was not confined solely to the making of such covers for furniture owned by the store, but slip covers were also made for furniture sent to the store for that purpose by customers. In the process of making slip covers and draperies a power driven sewing machine was used, and the work of making slip covers and draperies was done principally by claimant with the...