Max E. Landry, Inc. v. Treadway

• Decision Date: 27 December 1966
• Docket Number: No. 41932,41932
• Citation: 1966 OK 259,421 P.2d 829
• Parties: MAX E. LANDRY, INC., and Reliance Insurance Company, Petitioners, v. Margaret D. TREADWAY and the State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 829

421 P.2d 829

1966 OK 259

MAX E. LANDRY, INC., and Reliance Insurance Company, Petitioners, v. Margaret D. TREADWAY and the State Industrial Court, Respondents.

No. 41932.

Supreme Court of Oklahoma.

Dec. 27, 1966.

Syllabus by the Court

1. When landlord of several industrial tenants furnishes a parking lot for the joint use of such tenants and their employees, and the use thereof by employees is acquiesced in by the employers, such area constitutes premises of such employers in the application of the Workmen's Compensation Law.

2. In computing compensation for injured workman, it is error to consider income from other sources and other employers.

Original proceeding by Max E. Landry, Inc., and Reliance Insurance Company, to review an award of the State Industrial Court in favor of Margaret D. Treadway. Award sustained in part and reversed in part.

H. W. Nichols, Jr., of Watts, Looney, Nichols & Johnson, Oklahoma City, for petitioners.

Harry V. Rouse, III, Tulsa, for respondent Margaret D. Treadway.

DAVISON, Justice.

This is an original proceeding brought by Max E. Landry, Inc., hereinafter referred to as employer, and its insurance carrier, Reliance Insurance Company, petitioners, to review an award made to respondent, hereinafter referred to as claimant.

Claimant filed her first notice of injury November 1, 1965, with the State Industrial Court, alleging that on March 18, 1965, she received a broken leg. Respondent filed answer denying claimant's allegations and specifically denied that the alleged injury to the claimant did arise out of and in the course of claimant's employment. After the hearing an award was entered by the trial judge in favor of claimant. The order was adopted and affirmed when appealed to the State Industrial Court en banc.

For clarity, the parties will be referred to as they appeared in the trial tribunal.

The nature of the employment as coming within the purview of the Workmen's Compensation Act or the cause and extent of the disability are not issues in this proceeding.

The only questions raised by respondents are as follows:

1. The claimant did not receive an accidental injury arising out of and in the course of her employment.

2. The trial judge, and the Court en banc, was in error in allowing the maximum compensation rate of $37.50 per week.

The record discloses substantially the following facts: That claimant had been employed by respondent for some two months at a wage of $1.25 per hour and that her average wage was an average of $35.00 per week; that this employment was on a part time basis, her full time employment being for the Southwestern Bell Telephone Company, where her average monthly wage was $325.00; that respondent's business was conducted in a building where several other businesses were operated and that the owner of the building provided a parking lot for the use and benefit of the employees and customers of the building; that claimant, on the morning of the accident herein involved, arrived at the building at her usual time for work and that after getting out of her car, and While on the parking lot premises, but just before entering the building for her usual work day she slipped and fell, causing the involved injury.

After hearing the evidence the trial judge entered an order (affirmed by the court en banc) the pertinent parts necessary for a decision in this action, being as follows:

'That claimant sustained an accidental personal injury, arising out of and in the course of her hazardous employment with the above named respondent, within the terms and meaning of the Workmen's Compensation Law, on March 18, 1965, consisting of injury to her right lower leg.

'That at the time of said injury, claimant's wages were sufficient to fix her rate of compensation at $37.50 per week for temporary total disability and $37.50 per week for permanent partial disability; that as a result of said injury, claimant was temporarily totally disabled from March 18, 1965 to July 26, 1965, for which she is entitled to compensation for 18 weeks and 3 days in the total amount of $693.75, which has not been paid, and on which date temporary total disability ended.

'That it is the obligation of respondent or insurance carrier to pay the reasonable and necessary medical expenses, including hospital, incurred by claimant during said period of temporary total disability as the result of said injury.'

It is generally held that an injury sustained by an employee while going to or from his work Occurring on the premises owned or controlled by his employer, is deemed to have arisen out of and in the course of his employment. Kasari v. Industrial Commission of Ohio, 125 Ohio St. 410, 181 N.E. 809, 82 A.L.R. 1040; Superior Smokeless Coal and Mining Company v. Hise, 89 Okl. 70, 213 P. 303; Roxana Petroleum Corp. v. State Industrial Commission, 134 Okl. 181, 272 P. 847; Greenway v. National Gypsum Company, Okl., 296 P.2d 971; E. I. du Pont de Nemours & Co., Inc. v. Redding, 194 Okl. 52, 147 P.2d 166; Swanson v. General Paint Company, Okl., 361 P.2d 842.

In the case of Swanson v. General Paint Company, supra, we said:

'When landlord of several industrial tenants furnishes a parking yard for the joint use of such tenants and their employees, and the use thereof by employees is acquiesced in by the employers, such area constitutes premises of such employers in the application of the Workmen's Compensation Law.'

The respondent cites and relies on the following cases: Norvill v. Hardeman, Inc., Okl., 377 P.2d 208; Novak v. McAlister Materials, Okl., 301 P.2d 234; City of Tulsa v. Morrison, Okl., 312 P.2d 886; Walk v. S. C. Orbach Co., Okl., 393 P.2d 847.

All of the last above cases are distinguishable from the cases heretofore cited.

In the case of Norvill v. Hardeman, supra, the claimant was not injured while on the premises of the employer.

The case of Walk v. S. C. Orbach Co., supra, the claimant was injured by an assailant. We distinguished this case from the holding in the case of Swanson v. General Paint Co., supra.

The case of Novak v. McAlister Materials, supra, involved a situation where the claimant had left the premises where she was employed and had gone to lunch on her own...