Lucky-Kidd Mining Co. v. State Indus. Comm'n

• Decision Date: 05 May 1925
• Docket Number: Case Number: 14745
• Citation: 236 P. 600,110 Okla. 27,1925 OK 346
• Parties: LUCKY-KIDD MINING CO. et al. v. STATE INDUSTRIAL COMMISSION et al.
• Court: Oklahoma Supreme Court

1925 OK 346

236 P. 600

110 Okla. 27

LUCKY-KIDD MINING CO. et al. v. STATE INDUSTRIAL COMMISSION et al.

Case Number: 14745

Supreme Court of Oklahoma

Decided: May 5, 1925

Syllabus

¶0 1. Master and Servant--Workmen's Compensation Law -- Injuries Embraced -- How Determined.

Under Comp. Stat. 1921, sec. 7285, a compensable accidental injury must disclose from its circumstances the existence of two essential elements. It must have resulted "in the course of" employment, and it must also have arisen "out of" the employment. The absence of either of these essential elements destroys the application thereto of the beneficent provisions of the Compensation Law.

2. Same--Industrial Commission's Findings of Fact--When Not Conclusive.

Under Comp. Stat. 1921, sec. 7294, findings of fact made by the State Industrial Commission are conclusive when there is any evidence to support the same. But where there is an entire absence of evidence on which to base a material finding necessary to support an award of compensation, this court must declare as a matter of law that an award based on such unsupported material finding is unauthorized.

Commissioners' Opinion, Division No. 1.

Original proceeding brought by Lucky- Kidd Mining Co. et al., to have reviewed by this court an award of the State Industrial Commission in favor of Clyde Brewer entered September 4, 1923. Award vacated.

Clyde Brewer filed his claim with the State Industrial Commission December 26, 1922, for compensation for an injury sustained by him December 17, 1922, alleged to have been suffered accidentally and in the course of his employment by the Lucky-Kidd Mining Company. Hearing was thereafter had and on September 4, 1923, the State Industrial Commission entered its order finding that the claimant was injured accidentally, and that such injury arose out of and in the course of his employment, and fixed his compensation at the rate of $ 12.26 per week from December 17, 1922, for a period of 250 weeks, until the sum of $ 3,065 is paid. The Lucky-Kidd Mining Company and Associated Employers' Reciprocal, the insurance carrier, have brought this proceeding for the purpose of having this order of the State Industrial Commission reviewed, attaching to the petition in error a transcript of all the proceedings had before the Industrial Commission. The facts necessary to an understanding of the legal proposition involved in this proceeding will be stated in the opinion.

Burford, Miley, Hoffman & Burford, for petitioners.

Lydick & Wilson and George F. Short, Atty. Gen., for respondents.

LOGSDON, C.

¶1 This proceeding raises a rather difficult question as to the true meaning and correct interpretation of the clause, "accidental personal injury sustained by the employe arising out of and in the course of his employment," as contained in our Workmen's Compensation Law. (Comp. Stat. 1921, sec. 7285.)

¶2 Succinctly stated, the facts are: Claimant, for several months prior to the accident, had been in the employment of petitioner as a hoisterman. His duties required him to stay in the hoisting tower, elevated above the mine shaft entrance and to operate the hoisting machinery by which the miners were lowered into and brought out of the mine, and by which the dirt and ore were removed from the mine to the surface. His working hours were from 7:30 a. m. to 1 p. m. On the day of the accident the claimant got another man, a blacksmith, to go into the hoisting tower about 9:30 a. m. for the purpose of operating the hoisting machinery while claimant went down into the mine for the purpose of collecting at the foot of the shaft a load of refuse timbers which claimant intended to remove and haul to his home for use as firewood. The petitioner did not know of or authorize the substitution of this blacksmith in the hoisting tower. Claimant remained in the mine collecting this fuel for his personal use for about two hours. When he was ready to come to the surface, two miners working in the mine were also ready to leave the mine for their noonday meal. The three men entered the hoisting cage and the blacksmith in the tower brought them to the surface, but by some error operated the wrong lever or button when attempting to stop the machinery. Instead of stopping it he applied more power and the hoisting cage, with the men in it, shot upward till stopped by what is called the "sheave block." All of the three were injured, claimant's injuries resulting in amputation of his left arm. Respondent settled with the two injured miners, but denied liability by reason of claimant's injuries, and this proceeding resulted.

¶3 American compensation legislation is all based upon and varies but little from the English Compensation Act. In England and in all of the United States, except a very few, the provisions for compensation employ identical language in describing the injuries for which compensation shall be paid, viz., for accidental injuries "arising out of and in the course of employment." With this practical unanimity of legislative expression, judicial opinion in its interpretation is far from unanimous. This may be due in part to a failure to recognize the distinction between the two component phrases used in this clause. In Honnold on Workmen's Compensation, vol. 2, sec. 101, it is said:

"The importance of distinguishing between these terms arises from the fact that each represents an element essential to, but not authorizing, recovery of compensation without the presence of the element represented by the other. In other words, even though the injury occurred 'in the course of' the employment, if it did not 'arise out of' the employment there can be no recovery. * * * An employe doing what he was employed to do, and doing it in the way he was expected to do it, when the accident happened, is injured by accident arising out of and in the course of the employment."

¶4 This text is supported by the following: Bryant v. Fissell (N. J.) 86 A. 458; McNicol's Case (Mass.) 102 N.E. 697; Bayer v. Bayer (Mich.) 158 N.W. 109; In re Heitz (N.Y.) 112 N.E. 750; Archibald v. Workmen's Comp. Com'r (W. Va.) 87 S.E. 791; Dorrance v. New England Pin Co., 1 Conn. Comp. Dec. 24; McDonald v. Dunn, 2 Cal. I. A. C. Dec. 71; State ex rel. v. District Court (Minn.) 151 N.W. 912; Bradbury's Workmen's Compensation Law, p. 462; Ruegg's Employer's Liability and Workmen's Compensation (8th Ed.) p. 373.

¶5 It must be conceded that the injury in the instant case occurred "in the cou%' + employment," compensation There must be the concurring fact of its "arising out of" the employment.

"It arises 'out of' the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a casual connection between the conditions under which the work is required to be performed and the resulting injury." McNicol's Case (Mass.) 102 N.E. 697.

¶6 It is readily apparent that if claimant in this case had remained in the hoisting tower where his duties and the conditions of his employment required him to be, he could not have suffered injury in the manner here shown. His presence in the hoisting cage when game was being operated was not a condition or circumstance "arising out of his...