Denbo v. Roark
| Decision Date | 18 December 1945 |
| Docket Number | 31310. |
| Citation | 164 P.2d 977,196 Okla. 386,1945 OK 346 |
| Parties | DENBO v. ROARK et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 8, 1946.
Application for Leave to File Second Petition for Rehearing Denied Jan 22, 1946.
Order vacated and remanded.
Original proceeding by Oce Denbo, claimant, against Farmers Union Mutual Insurance Company and the State Industrial Commission to review an order of the Commission denying an award of compensation under the Workmen's Compensation Law.
GIBSON C.J., dissenting.
Syllabus by the Court.
1. Where a co-operative association engaged in the nonhazardous business of writing insurance issues a policy upon business property which is later damaged, and the insurer elects to rebuild in lieu of cash settlement, and employs a workman who begins the operation of rebuilding, and where such employee is injured while repairing such building, such operation of rebuilding is hazardous employment and is within the definition of 'construction work' as defined in 85 O.S. 1941 § 3, Subdivision 14, of the Workmen's Compensation Law.
2. Where a co-operative association engaged in the nonhazardous business of writing insurance issues a policy upon business property which is later damaged, and by election became obligated to rebuild in lieu of a cash settlement and employs workmen, one of whom is injured while in the process of rebuilding, the charging and acceptance of the premium for such policy renders the insurer an employer for pecuniary gain within the provisions of 85 O.S.1941 Section 3 Subdivision 5, of the Workmen's Compensation Law.
3. The Workmen's Compensation Law is remedial and should be construed liberally and as a whole, and all reasonable presumptions indulged in favor of those for whose protection the statutory compensation was fixed and who, by the terms of the act, are deprived of the ordinary remedies open to others whose rights are invaded.
Dennis Bushyhead, of Claremore, for petitioner.
William M. Franklin, of Oklahoma City, and Mac Q. Williamson, Atty. Gen., for respondent.
This is an original proceeding in this court by Oce Denbo, hereinafter referred to as petitioner, to review an order made by the trial commissioner and affirmed by the State Industrial Commission, denying the claim of the petitioner for a compensation award against Farmers Mutual Insurance Company, hereinafter referred to as respondent.
The respondent, Mutual Insurance Department of the Oklahoma Farmer's Union, alleges that it writes and issues policies of wind, fire and tornado insurance to members only. The insurance policy issued by respondent was issued to O. A. Vinall, secretary-treasurer of the A.F.L., and covered a building known as Labor Union Temple located on lots 2-17A, town of Pryor. The building thereon was damaged by a tornado and respondent, in lieu of payment of cash settlement for the damage, employed petitioner and others to repair the building.
On July 22, 1942, petitioner filed with the Industrial Commission his first notice of injury and claim for compensation alleging an injury as a result of a fall while employed as a carpenter in Pryor, Okl. Respondent in its answer denied the allegations of the claim and further denied petitioner was engaged in a hazardous occupation within the purview of the Workmen's Compensation Act and further alleged respondent was not engaged in a hazardous industry or work as described in the Workmen's Compensation Law.
Upon hearing to determine liability and extent of disability the matter was submitted upon stipulation, the pertinent part being as follows:
'It is stipulated between the claimant and the respondent as follows: That the proper name of the insurance company mentioned in the pleadings is the 'Farmers Union Mutual Insurance Company, and that the pleadings in the case filed may be considered as against the Farmers Union Mutual Insurance Company.
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'Now it is stipulated and agreed further that the Farmers Union Mutual Insurance Company is a wind, fire and tornado insurance company doing business under the law of the State of Oklahoma for members of the Farmers Union only.
'It is stipulated further that their business is that of writing fire and tornado insurance and they are organized for that purpose and that they are incorporated for that purpose and that purpose only.
'It is stipulated further that notwithstanding the fact that they are organized and incorporated for the insurance business set out that they do, at times, reserve the option to rebuild some premises that are destroyed and were so engaged at the time that the claimant was injured, if he was injured.'
The trial commissioner found that petitioner alleged he received an accidental personal injury while in employ of respondent, and further: 'That at the time of said alleged accidental personal injury, the respondent, Farmers Union Mutual Insurance Company was not engaged in a hazardous occupation as defined by the provisions of the Workmen's Compensation Law.'
Petitioner contends that although the Workmen's Compensation Law, 85 O.S.1941 sec. 2, does not classify an insurance company writing fire, wind and tornado insurance, as a hazardous employment, yet such company in the operation of its business may subject itself to the provisions of such law and the responsibilities therein provided.
Upon damage occurring to the building covered by the policy of insurance issued by the respondent, the respondent became obligated thereunder to the extent provided for therein. The respondent, as set forth in the stipulation, in the present instance, exercised its option to rebuild the building and was so engaged at the time the petitioner claims he was injured. This was in lieu of a cash settlement of the damage. The respondent, having exercised the option, commenced the fulfillment of its obligation by employing workmen and setting them to work upon the repairing of the building.
The term 'construction and engineering works' contained in 85 O.S. 1941 § 2, is defined in section 3, subdivision 14 as follows: "Construction work' or 'engineering work' means improvement or alteration or repair of buildings, structures, streets, highways, sewers, street railways, railroads, logging roads, interurban railroads, electric, steam or water plants, telegraph and telephone plants and lines, electric lines or power lines, and includes any other work for the construction, altering, or repairing for which machinery driven by mechanical power is used.'
Clearly the operation in which the respondent was engaged falls within the definition of 'construction work' or 'engineering work' as...
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