Ft. Smith Aircraft Co. v. State Indus. Com'n

• Decision Date: 07 July 1931
• Docket Number: 21659.
• Citation: 1 P.2d 682,151 Okla. 67,1931 OK 409
• Parties: FT. SMITH AIRCRAFT CO. v. STATE INDUSTRIAL COMMISSION et al.
• Court: Oklahoma Supreme Court

1 P.2d 682

151 Okla. 67, 1931 OK 409

FT. SMITH AIRCRAFT CO. v. STATE INDUSTRIAL COMMISSION et al.

No. 21659.

Supreme Court of Oklahoma

July 7, 1931

Rehearing Denied July 28, 1931.

Syllabus by the Court.

An airport where a shop is maintained for the purpose of building, cleaning, and repairing airplanes, and which is equipped with power-driven machinery used for such purposes comes within the definition of a "factory" as contemplated by the Workmen's Compensation Act (section 7284, C. O. S. 1921 [as amended by Laws 1923, c. 61, § 2]).

An airport or flying field equipped with power-driven machinery used for the purpose of building, cleaning, and repairing airplanes, and at which flying and the operation of airplanes is taught, is a "workshop" within the meaning of the term as used in the Workmen's Compensation Act (section 7284, C. O. S. 1921 [as amended by Laws 1923, c. 61 § 2]).

When an injury to an employee arises out of and in the course of his employment, such injury comes within the provisions of the Workmen's Compensation Act, even though it may not have been sustained upon the employer's premises, if it occurred at some place where the employee was reasonably required to be in fulfilling the duties of his employment.

An accidental personal injury sustained by a person in the course of his employment as an instructor in flying and as an assistant mechanic at an airport, as the result of a crash of a plane a short distance from the airport, and which airport is maintained as a place where instructions are given in flying and in the repair, operation, and use of airplanes, is subject to the Workmen's Compensation Act.

Additional Syllabus by Editorial Staff.

Original action by the Fort Smith Aircraft Company to review an award of the State Industrial Commission awarding compensation to Kenneth P. Enlows.

Award affirmed.

Pryor Miles & Pryor and Vincent M. Miles, all of Ft. Smith, Ark., and Walter D. Humphrey, of Tulsa, for petitioner.

J. Berry King, Atty. Gen., and Hudson & Hudson, of Tulsa, for respondents.

McNEILL J.

This is an original action brought to review an order and award of the State Industrial Commission, awarding compensation to the respondent Kenneth P. Enlows.

On January 6, 1930, said respondent filed, with the State Industrial Commission, his claim for compensation against the Fort Smith Aircraft Company, petitioner herein. The petitioner had a lease upon a certain tract of ground in Sequoyah county, Okl., near the city of Fort Smith, Ark., upon which it maintained a commercial airport, at which persons were instructed in repairing, operating, and flying airplanes, and where a shop was maintained for repairing airplanes. The respondent was employed by the petitioner as a pilot for the purpose of transporting passengers and instructing students in operating and flying airplanes, and on October 26, 1929, while the respondent was giving instructions in flying to a student flyer with a Waco biplane, powered with an Ox-5 motor, his plane crashed to the ground a short distance from the airport, and respondent sustained an accidental personal injury resulting in brain concussion, broken ankle and leg, and a dislocated shoulder, and from the effects of which respondent was unconscious for about two months and is still disabled. The only controversy as to facts arises from the contention of the respondent that in addition to being employed as a pilot he also was employed to do mechanical labor at the airport, which contention is denied by petitioner. Petitioner further contends that at the time of the crash, the respondent was directly violating the written rules of the airport, copies of which had been furnished to him, and was also violating the rules and regulations of the Department of Commerce of the United States, in that he was flying a plane at an altitude of less than 500 feet; and instead of giving his student instruction within gliding distance of the airport, he had taken him on a ride for pleasure for the purpose of inspecting duck blinds upon the Arkansas river; and that in coming down to see the duck blinds closely he had come to an elevation of not to exceed 200 feet, and in suddenly attempting to climb over some trees on the bank of the river he lost his flying speed and the plane fell.

The State Industrial Commission made certain findings of facts and awarded claimant compensation to continue, until the further order of the commission, or until the percentage of permanent disability, if any, can be more definitely determined. The findings of fact to which the petitioner objects are as follows:

"1. That on and prior to October 26th, 1929, claimant Kenneth P. Enlows, was in the employment of Respondent, Fort Smith Aircraft Company, and engaged in a hazardous occupation subject to and covered by the provisions of the Workmen's Compensation Law."

"2. That arising out of and in the course of such employment with Respondent herein, Claimant sustained an accidental personal injury on October 26th, 1929."

It is the contention of the petitioner that the respondent had violated instructions; that he and the student flyer, who was with him at the time of the accident, went to examine some duck blinds upon the Arkansas river, and for which reason the accident did not arise out of and in the course of the employment. In support of this contention, counsel for petitioner cites the case of Dickey v. Pittsburgh & L. E. R. Co., 297 Pa. 172, 146 A. 543, 544, wherein the court said: "We said in Shoffler v. Lehigh Valley Coal Co., 290 Pa. 480, 139 A. 192: "'Course of employment" does not include (a) injuries received while away from the actual place of employment where the deviation or departure is wholly foreign to his duties, and amounts to an abandonment of employment; (b) injuries received in the commission of an act which is in direct violation of the law; or (c) an act contrary to the positive orders of the employer."'

We have no fault to find with the law as declared in this decision, but the question of whether the injuries were received by the respondent while he was away from his actual place of employment and in violation of the instructions of his employer is a question of fact to be determined by the commission, from all the evidence, and we cannot say that the conclusion reached by the commission in that respect is not reasonably supported by the evidence. Both the respondent and the student flyer testified in substance that the respondent had taken the student up for instructions; that they remembered the crash when the airplane fell and that was all they remembered; that the rest was blank to them; that they could not remember going over to look at "duck blinds." Dr. Heasley, the physician who treated the claimant, testified that it is usual under such conditions that the person injured does not remember the details of what happened and that they usually only remember taking off from the surface. There is some evidence in the record to show that on a previous occasion the claimant and student flyer while flying a plane had gone to look at these duck blinds, and that the spot of the crash was about one-half mile from the duck blinds. The evidence does not show at just what distance the place of the crash was from the airport, but it is apparent from the evidence that such distance was not great. From a consideration of all the evidence we believe that the contention of petitioner that the respondent had left the place of his employment to inspect duck blinds was mere conjecture.

This brings us to the most serious question raised by the petitioner in his brief as follows:

"The State Industrial Commission erred in including within the hazardous employments covered by the Statutes of Oklahoma as coming within the provisions of the Workmen's Compensation Act the duty of flying an airplane, and by its order deprived petitioner of its property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States."

"Section 7283 of the Compiled Oklahoma Statutes 1921 , and amendments thereto expressly name the hazardous employments in which employees shall be paid compensation under the Workmen's Compensation Law. The employment of flying an airplane is not included in this employment, and the State Industrial Commission is without jurisdiction to award compensation to an airplane pilot who is injured by the falling of an airplane when in flight."

Section 7295, C. O. S. 1921, provides that, in the absence of evidence to the contrary, a claim for compensation shall be presumed to come within the provisions of the act. As the contention of the petitioner, that the crash of the airplane occurred while the respondent was taking a flight for pleasure away from the airfield, was not supported by any evidence, the said provision of the statute is applicable, or, at least, it may be said that the finding of the commission that the respondent sustained an accidental personal injury arising out of and in the course of his employment is amply supported by the evidence.

The whole matter in controversy narrows down to the one question: Was the claimant at time of his accident engaged in a hazardous employment, covered by the Workmen's Compensation Act?

Section 7283, C. O. S. 1921, as amended by Laws 1923, c. 61, § 1, defines the employments contemplated by the Workmen's Compensation Act, and is, in part, as follows: "Compensation provided for in this act shall be payable for injuries sustained by employees engaged in the following hazardous employments, to-wit: Factories, cotton gins, mills and work shops where machinery is used. * * *"

Section 7284, as amended by Laws 1923, c. 61, § 2:

"'Factory' means any undertaking in...