Meyer & Meyer v. Davis

• Decision Date: 31 January 1933
• Docket Number: 24002.
• Citation: 18 P.2d 869,162 Okla. 16,1933 OK 46
• Parties: MEYER & MEYER et al. v. DAVIS et al.
• Court: Oklahoma Supreme Court

18 P.2d 869

162 Okla. 16, 1933 OK 46

MEYER & MEYER et al. v. DAVIS et al.

No. 24002.

Supreme Court of Oklahoma

January 31, 1933

Laborer injured while doing painting on building of operator of funeral home, was not protected by Workmen's Compensation Act, because his employer was engaged in nonhazardous employment, and because the hazardous work being done by the laborer was not being carried on by the employer for pecuniary gain.

Syllabus by the Court.

Where an employer is engaged in a nonhazardous business, and employs some one to perform labor for him of a hazardous nature as an incident to such nonhazardous business, but not in the conduct of same for pecuniary gain, such employee, if injured, does not come within the provisions of the Workmen's Compensation Act, for subsection 5 of section 13350, O. S. 1931, provides: "'Employment' includes employment only in a trade, business or occupation carried on by the employer for pecuniary gain."

Original action by Meyer & Meyer and another to review an award of the State Industrial Commission in favor of John D. Davis claimant.

Award vacated, with directions.

Owen & Looney, Paul N. Lindsey, and J. Fred Swanson, all of Oklahoma City, for petitioners.

Dan Nelson and Thad L. Klutts, both of Oklahoma City, for respondents.

OSBORN J.

This is an original proceeding to review an award made by the State Industrial Commission in favor of the respondent, John D Davis, employed by Meyer & Meyer, one of the petitioners herein. The petitioners contend that the commission was without jurisdiction to make the award, for the reason that the employment of claimant did not come under the Workmen's Compensation Act.

The record shows that Meyer & Meyer operate a funeral home in the city of Norman, Okl. It appears that at the time of the injury claimant was engaged in painting and decorating the woodwork in the building occupied by the funeral home, and that prior to his injury he had cleaned and replaced the putty in some of the windows; that while painting the woodwork around one of the windows, a ladder slipped and he fell about 18 or 20 feet to a cement sidewalk, fracturing his arm and wrist, and straining some ligaments in his hip.

On July 6, 1932, after hearing, the commission entered an order finding that claimant was engaged in a hazardous employment subject to and covered by the provisions of the Workmen's Compensation Act, and awarded compensation on the basis of temporary total disability.

It is conceded that the business of operating a funeral home does not come within the provisions of the Workmen's Compensation Law, and is not defined as a hazardous employment by section 13349, O. S. 1931. It is contended however, that painting a building is embraced within the terms of the act; but, under the view we take, it is unnecesessary for us to determine this question. The respondent further contends that the award should be sustained on account of the rule laid down in several cases heretofore decided by this court, as follows: Sunshine Food Stores v. Moorehead et al., 153 Okl. 301, 5 P.2d 1066, and Svoboda v. Brooking, 132 Okl. 290, 270 P. 575, and Harbour-Longmire-Pace Co. v. State Industrial Commission, 147 Okl. 207, 296 P. 456.

In these cases the principal business of the employer was classified as nonhazardous; however, claimants were allowed to recover for the reason that, incidental to the principal business, the employer was engaged in another business classified as hazardous, and the particular injuries were sustained in connection with such hazardous employment.

We believe the rule is correct, and that the cases above cited have correctly followed the rule; but under the facts in the instant case such rule has no application.

Subsection 5, section 13350, O. S. 1931, in defining the term "employment" as covered by the Workmen's Compensation Act, provides as follows: "'Employment' includes employment only in a trade, business or occupation carried on by the employer for pecuniary gain."

In the case of Sunshine Food Stores v. Moorehead, supra, employer was operating a retail meat market, which is a nonhazardous employment, but as a part of the business the market was equipped with certain power-driven machinery. The court held that since machinery was used in the meat market, the same became a workshop, and therefore a hazardous employment within the Workmen's Compensation Act. It will be noted that the machinery was used as a part of the business carried on by the employer for pecuniary gain.

In the case of Svoboda v. Brooking, supra, employer was operating a blacksmith shop, and in connection therewith...