Mcgill v. Nixon

• Decision Date: 09 May 1933
• Docket Number: Case Number: 23566
• Citation: 163 Okla. 278,21 P.2d 1049,1933 OK 313
• Court: Oklahoma Supreme Court
• Parties: SPIVEY & McGILL v. NIXON

1933 OK 313

21 P.2d 1049

163 Okla. 278

SPIVEY & McGILL v. NIXON

Case Number: 23566

Supreme Court of Oklahoma

Decided: May 9, 1933

Syllabus

¶0 1. Master and Servant--Workmen's Compensation--Statute Enumerating Classes of Businesses Covered by Compensation Act.

Section 13349, O. S. 1931, enumerates and designates the classes of industries and business enterprises which come within the provisions of the Workmen's Compensation Act.

2. Same--"Hazardous Employment."

Section 13350, O. S. 1931, defines "hazardous employment."

3. Same--Requisite Conditions for Award of Compensation.

In order for the State Industrial Commission to have jurisdiction to award compensation to an employee and against an employer or insurance carrier for an accidental personal injury arising out of and in the course of his employment, such employment must be in one of the industries, plants, factories, lines, occupations, or trades mentioned in section 13349, O. S. 1931; or the facts must bring the branch or department of the business under said section governed by the phrase "hazardous employment," as defined in section 13350, O. S. 1931.

4. Same--Deliveryman for Retail Department Store Held not to Come Within Provisions of Act.

A retail deliveryman for a retail department store does not come under the provisions of section 13349, O. S. 1931.

5. Same--Lack of Jurisdiction to Award Compensation.

Where the law does not place the industry, plant, factory, line, occupation, or trade under section 13349, O. S. 1931, and the facts do not bring the branch or department under said section, then the State Industrial Commission is without power and jurisdiction to award compensation to an injured employee in an industry or business that does not come under the act or is not brought under section 13349, supra, by the facts.

6. Same--Review of Award--Lack of Jurisdiction to Make Award on Ground of Change in Condition Where no Jurisdiction to Make Original Award Upon Approved Settlement.

In a proceeding to review an award of the State Industrial Commission on the ground of a change in condition in which the jurisdiction of the Commission to make an award is raised and no memorandum of the facts was filed at the time the original settlement was approved by the Commission and no evidence offered and there appears to have been no competent evidence before the State Industrial Commission upon which to base an award for compensation, and the Commission never made any finding of fact, but only approved the settlement, the power and jurisdiction of the State Industrial Commission to reopen the case may thereafter be questioned by any party in interest, and if the Commission was without jurisdiction to award compensation in the first instance, under such circumstances it had no jurisdiction to make an award upon the ground of a change in condition.

Original proceeding in the Supreme Court by Spivey & McGill et al. to review an award of State Industrial Commission in favor of Press Nixon. Award vacated.

Randolph, Haver, Shirk & Bridges, for petitioners.

Fred M. Hammer, M. J. Parmenter, and J. Berry King, Atty. Gen., for respondents.

ANDREWS, J.

¶1 This is an original proceeding in this court by Spivey & McGill and the Travelers Insurance Company to review an order of the State Industrial Commission awarding compensation to Press Nixon.

¶2 The record shows that the petitioner Spivey & McGill was engaged in the furniture business in Oklahoma, and that the claimant, on February 23, 1931, while engaged in unloading and delivering furniture, received an injury to his ankle. A stipulation of settlement was entered into between the parties, whereby the claimant agreed to accept $ 33.34 as compensation in full for temporary total disability. The settlement was approved by the Commission on March 24, 1931. Thereafter, and in December, 1931, the claimant filed his motion to reopen the case and for additional compensation because of a change in his condition. A hearing was had on the motion, and at the conclusion thereof the Commission found that the claimant had received an injury, as alleged, while in the employment of the petitioner Spivey & McGill, who was engaged in the wholesale and retail furniture business; that there had been a change in condition of the claimant for the worse since the prior award, and that he had sustained a 20 per cent. permanent partial loss of the use of his left leg, and awarded him additional compensation in the sum of $ 461.70.

¶3 The petitioners contend that the evidence is insufficient to sustain the finding that Spivey & McGill was engaged in the wholesale furniture business at the time the claimant received his injury; that the evidence is conclusive that it was at that time engaged in the retail furniture business; that the claimant, therefore, was not engaged in a hazardous occupation within the meaning of the Workmen's Compensation Act, at the time he sustained his injury, and that the Commission was, therefore, without jurisdiction to enter an award.

¶4 We have examined the record on this question and fail to discover any evidence which shows that the claimant sustained his injury while working for the petitioner in a wholesale furniture department. The claimant, in his brief, points to none. The evidence shows that he was injured while delivering furniture from the petitioner's retail furniture store to the home of a customer.

¶5 The claimant contends that the petitioners cannot, in this action, raise the question of want of jurisdiction. We cannot sustain that contention.

¶6 The Supreme Court of the United States had before it, in Letus N. Crowell, as Deputy Commissioner for the Seventh Compensation District of the United States Employees' Compensation Commission, and J. B. Knudsen, Petitioners, v. Charles Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598, the question of whether or not an award made under the Longshoremen's and Harbor Workers' Compensation Act (Act of March 4, 1927, c. 509, 44 Stat. 1424; U.S.C. Tit. 33, secs. 901-950) should be enjoined. That award was based upon a finding that Knudsen was injured while in the employ of Benson and performing service upon the navigable waters of the United States. It was contended that the award was contrary to law, for the reason, among others, that the claim was not within the jurisdiction of the deputy commissioner, and that the act was unconstitutional. As stated in the opinion:

"The act provides that it shall be presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of the act, that sufficient notice of claim has been given, that the injury was not occasioned solely by the intoxication of the injured employee, or by the willful intention of such employee to injure or kill himself or another"

--and:

"A compensation order becomes effective when filed, and unless proceedings are instituted to suspend it or set it aside, it becomes final at the expiration of 30 days."

That court said:

"Apart from cases involving constitutional rights to be appropriately enforced by proceedings in court, there can be no doubt that the act contemplates that as to questions of fact, arising with respect to injuries to employees within the purview of the act, the findings of the deputy commissioner, supported by evidence and within the scope of his authority, shall be final. To hold otherwise would be to defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task. The object is to secure within the prescribed limits of the employer's liability an immediate investigation and a sound practical judgment, and the efficacy of the plan depends upon the finality of the determinations of fact with respect to the circumstances, nature, extent, and consequences of the employee's injuries and the amount of compensation that should be awarded."

¶7 It pointed out that rulings of the deputy commissioner on questions of law are without finality, and said that: "An award not supported by evidence in the record is not in accordance with law." It said that the statute has a limited application, being confined to the relation of master and servant, and that where the determinations of fact are fundamental or jurisdictional, in the sense that their existence is a condition precedent to the operation of the statutory scheme, it is necessary that the relation of master and servant be shown to have existed at the time of the injury, and that:

"* * * The Congress has imposed liability without fault only where the relation of master and servant exists in maritime employment and, while we hold that the Congress could do this, the fact of that relation is the pivot of the statute and, in the absence of any other justification, underlies the constitutionality of this enactment. If the person injured was not an employee of the person sought to be held, or if the injury did not occur upon the navigable waters of the United States, there is no ground for an assertion that the person against whom the proceeding was directed could constitutionally be subjected, in the absence of fault upon his part, to the liability which the statute creates."

It said:

"The recognition of the utility and convenience of administrative agencies for the investigation and finding of facts within their proper province, and the support of their authorized action, does not require the conclusion that there is no limitation of their use, and that the Congress could completely oust the courts of all determinations of fact by vesting the authority to make them with finality in its own instrumentalities or in the executive department"

--and it pointed out the distinction between the facts "clearly not jurisdictional" and "where the facts involved are jurisdictional." It pointed out that the fact...