Garr v. Collins, 35403
| Decision Date | 17 February 1953 |
| Docket Number | No. 35403,35403 |
| Citation | 253 P.2d 838,208 Okla. 113 |
| Parties | GARR et al. v. COLLINS et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The provisions of the Act of the Legislature of 1947 are severable. Sections 2 and 3 of said Act, 85 O.S.1951 §§ 65.2 and 65.3 are not unconstitutional. Petitioners are not thereby denied the equal protection of the law within the meaning of the State and Federal Constitutions.
2. The question as to whether an injury sustained by an employee arose out of and in the course of his employment is one of fact to be determined by the State Industrial Commission under the circumstances of each particular case, and where there is competent evidence reasonably tending to support the finding it will not be disturbed on review.
3. The relation of employer and employee under our Workmen's Compensation Law may arise by implied contract, such as by knowledge and acquiescence of the employer in the services performed by employee.
4. It cannot be said that the injury of an employee sustained while attempting to start an air compressor to put air in a tire of a tractor belonging to his employer, did not arise out of and in the course of his employment simply because after he had completed that task he intended to use the air compressor to put air in a tire of his own car.
Cheek, Cheek & Cheek, Ray Teague, all of Oklahoma City, for petitioners.
Wallace Hatcher, of Pauls Valley, Mac Q. Williamson, Atty. Gen., for respondents.
Respondent in his claim for compensation states that on September 23, 1951, while in the employ of petitioner, J. W. Garr, he sustained an injury to his right hand consisting of the loss of his first and second fingers, and injury to a third finger of the hand; that the injury occurred while he was engaged in starting an air compressor for the purpose of putting air in the tire of a tractor belonging to the petitioner, J. W. Garr; that he was at that time employed as a ranch and farm laborer.
The trial commissioner, in substance, found that on Sunday September 23, 1951, respondent, while in the employ of petitioner, sustained an accidental personal injury to his right hand when he caught the first and second fingers of the right hand in the V-belt of an air compressor, and that as a result of said accidental injury he suffered the amputation of the distal phalanx of the first and second fingers of the hand, and as a result of such injury he was temporarily totally disabled for a period of six weeks and four days and would be entitled to compensation for such disability in the sum of $166.68 if any compensation were due, and in addition thereto he sustained a twenty per cent permanent partial disability to the right hand which would entitle him to compensation for such disability in the sum of $1,000, if any compensation were due. He also further found that at the time claimant sustained his accidental injury he was in the act of starting an air compressor to put air in the tire of his personal automobile and was therefore not acting within the scope of his employment for his master's interest, and was not entitled to compensation. He also found that petitioner carried Workmen's Compensation insurance for his employees, having a combined liability and Workmen's Compensation policy which policy covered respondent, Lee Collins, and that petitioner and his insurance carrier are therefore estopped to deny that the occupation in which claimant was engaged was hazardous within the meaning of the Workmen's Compensation Law, 85 O.S.1951 § 1 et seq., and upon such findings entered an award denying compensation. The Commission sitting as a whole on appeal modified the award and by such modified award made its own independent findings of fact and conclusions of law. It found that on the 23rd day of September, 1951, respondent, while in the employ of petitioner, sustained an accidental personal injury consisting of the amputation of the distal phalanx of the first and second fingers of his right hand, and as a result of such injury he was temporarily totally disabled for a period of six weeks and four days for which he was entitled to compensation in the sum of $166.68; that in addition thereto he sustained a thirty-five per cent permanent partial disability to his right hand for which he was entitled to compensation in the sum of $1750, and further found that at the time respondent sustained his accidental personal injury he was acting within in scope of his employment for petitioner J. W. Garr and entered an award awarding respondent compensation accordingly. In all other respects the findings of the trial commissioner were sustained.
Petitioners bring the case here for review and seek to vacate the award on the ground that the respondent was not engaged in a hazardous employment at the time he sustained his injury, and in the alternative that the injury sustained by him did not arise out of and in the course of his employment.
The evidence shows that prior to and at the time he sustained his injury respondent was employed by petitioner J. W. Garr as a ranch and farm laborer. It is conceded by respondent that such employment is not an employment defined as hazardous by the Workmen's Compensation Law. It is stipulated that petitioner carried compensation insurance for his employees and that the policy covered respondent and was in force at the time he sustained his injury, and that his salary was used in fixing and collecting the premium paid on the policy. Respondent refers to 85 O.S.1951 §§ 65.2 and 65.3 and asserts that under sec. 65.2 by reason of the fact that the petitioner had obtained compensation insurance for his employees under conditions stated in the stipulation he is now estopped to deny that respondent was engaged in a hazardous employment at the time he sustained his injury. It is contended by petitioners that said section of the statute is unconstitutional. This contention cannot be sustained. We have many times held to the contrary. National Bank of Tulsa Bldg. v. Goldsmith, 204 Okl. 45, 226...
To continue reading
Request your trial
-
Barnhill v. Smithway Motor Express
...under the circumstances of each particular case. See Morris v. City of Oklahoma City, 1979 OK 174, 606 P.2d 1129, 1130; Garr v. Collins, 208 Okla. 113, 253 P.2d 838, 839 Second Syllabus (1953). The burden of proof is on claimant to show the disability for which compensation is sought was ca......
-
Snodgrass v. Douglas Aircraft Co.
...Dairy v. Gibbons, Okl., 395 P.2d 947; Long v. Honeycutt, Okl., 393 P.2d 866; Terry Motor Co. v. Mixon, Okl., 361 P.2d 180; Garr v. Collins, 208 Okl. 113, 253 P.2d 838. We hold claimant did not meet the burden of proof necessary to establish that the death of deceased arose out of and in the......
-
Garvin County v. Pierce
...Dairy v. Gibbons, Okl., 395 P.2d 947; Long v. Honeycutt, Okl., 393 P.2d 866; Terry Motor Co. v. Mixon, Okl., 361 P.2d 180; Garr v. Collins, 208 Okl. 113, 253 P.2d 838. We hold there is ample testimony to reasonably support the lower court's finding that deceased's death arose out of and in ......
-
Nebo Oil Co. v. Wright
...it will not be disturbed on review. Townley's Dairy v. Gibbons, Okl., 395 P.2d 947; Long v. Honeycutt, Okl., 393 P.2d 866; Garr v. Collins, 208 Okl. 113 253 P.2d 838; Terry Motor Company v. Mixon, Okl., 361 P.2d 180. Also, any reasonable doubt as to whether an injury did in fact arise out o......