Ganzer v. Barnard

• Decision Date: 03 May 1932
• Docket Number: Case Number: 22638
• Parties: GANZER v. CHAPMAN & BARNARD et al.
• Court: Oklahoma Supreme Court

1932 OK 339

11 P.2d 115

157 Okla. 99

GANZER v. CHAPMAN & BARNARD et al.

Case Number: 22638

Supreme Court of Oklahoma

Decided: May 3, 1932

Syllabus

¶0 1. Master and Servant--Workmen's Compensation Law--Work of Building Pond on Ranch With Machinery Held Not Within Purview of Act.

The employee of one engaged in the business of stock raising or agriculture, employed to dredge, construct, or build ponds, using a machine for that purpose, for the improvement of the ranch and as an incident to the conduct and operation of the ranch, does not come within the purview of the Workmen's Compensation Act, and said employee cannot recover compensation for an injury sustained while so employed.

2. Same--Order Denying Compensation Sustained.

Record examined, and held to sustain the order of the State Industrial Commission.

Original proceeding in the Supreme Court by Wilbur Ganzer to review an order of the State Industrial Commission in a proceeding then pending before the Commission entitled Ganzer v. Chapman & Barnard et al. Affirmed.

West, Gibson, Sherman, Davidson & Hull, for petitioner.

Cheek & Lee and Ray Teague, for respondent, Chapman & Barnard.

CULLISON, J.

¶1 This is an original proceeding before this court to review an order of the State Industrial Commission made and entered July 29, 1931, in an action then pending before it, wherein Wilbur Ganzer was claimant and Chapman & Barnard his employers.

¶2 Said order here sought to be reviewed is in words and figures as follows, to wit (omitting caption):

"Order.

"Now, on this 29th day of June, 1931, the State Industrial Commission being regularly in session, this cause comes on to be considered pursuant to hearing had before Commissioner Mat McElroy, at Pawhuska, Okla., on June 12, 1931, to determine liability and extent of disability, at which hearing claimant appeared in person and by his attorney, John Rogers; respondent and insurance carrier being represented by H. E. Chambers.

"Having reviewed the testimony taken at said hearing, examined all records on file in said cause, and being otherwise well advised in the premises, the Commission is of the opinion that the employment in which claimant was engaged at the time of the accident complained of herein, to wit, operating a dredge in building ponds on the cattle ranch of the respondent herein, does not come within the purview of the Workmen's Compensation Law, section 7284 thereof.

"It is therefore ordered: That this cause be and the same is hereby dismissed for lack of jurisdiction of the Commission to hear and determine the issues herein.

"Opinion and Order by Commissioner Mat McElroy. Chairman Thos. H. Doyle and Commissioner Fred H. Fannin, concurring. MMcE:AJ.

(Seal).

¶3 There is no dispute as to the facts in the case. The claimant, Wilbur Ganzer, was employed by the respondents to operate a dredging machine to dig ponds or tanks used for watering stock on the ranch operated by the respondents. While doing so the claimant was injured. He made a claim for compensation. The Commission, after having heard the testimony, concluded, as shown by the order heretofore quoted, that the employment in which claimant was engaged did not come within the purview of the Workmen's Compensation Law.

¶4 The sole question involved in this appeal, therefore, is whether the employment in which claimant was engaged was such employment for which his employer was liable under the Workmen's Compensation Law of Oklahoma. This question may be more concretely stated in this form:

"Question

"Can the employee of one engaged in the business of stock raising or agriculture, employed to dredge, construct, or build ponds, using a machine for that purpose, for the improvement of the ranch and as an incident to the conduct and operation of the ranch, recover compensation for an injury sustained while so employed?"

¶5 Section 7283, C. O. S. 1921, as amended by section 1, ch. 61, Session Laws 1923, enumerates the employments intended to be covered and included in the Compensation Act. Various classifications of industries are included, and others excluded, by language as follows:

"Section 7283. Compensation provided for in this act shall be payable for injuries sustained by employees engaged in the following hazardous employments, to wit: factories, * * *dredges, * * *farm buildings, and farm improvements excepted. * * *"

¶6 Section 7284, C. O. S. 1921, as amended by section 2, chapter 61, Session Laws 1923, contains the definitions of terms as used in the Compensation Act. Subdivision 1 thereof reads as follows:

"Section 7284, subd. 1. 'Hazardous employment shall mean manual or mechanical work, or labor, connected with or incident to one of the industries, plants, factories, lines, occupation, or trades mentioned in section 7283, except employees engaged as clerical workers exclusively, and shall not include any one engaged in agriculture, horticulture, or dairy or stock raising, or in operating any railroad engaged in interstate commerce."

¶7 Subdivision 5 of said section defines "employment" as follows:

Section 7284, subd. 5: "'Employment' includes employment only in a trade, business or occupation carried on by the employer for pecuniary gain."

¶8 Subdivision 10 of the same section is as follows:

Section 7284, subd. 10: "'Factory' means any undertaking in which the business of working at commodities is carried on with power-driven machinery, either in manufacture, repair, cleaning, or assorting, and shall include the premises, yard and plant of the concern, but shall not include any such plants or machinery used on farms."

¶9 Subdivision 15 of the same section reads as follows:

Section 7284, subd. 15: "Where several classes or kinds of work is performed, the Commission shall classify such employment,

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