Mining v. Davison

• Court: Oklahoma Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Mining v. Davison, 1942 OK 413, 132 P.2d 937, 192 Okla. 13 (Okla. 1942)
• Decision Date: 08 December 1942
• Docket Number: Case Number: 30974
• Parties: EAGLE-PICHER MINING & SMELTING CO. v. DAVISON et al.

1942 OK 413

132 P.2d 937

192 Okla. 13

EAGLE-PICHER MINING & SMELTING CO. v. DAVISON et al.

Case Number: 30974

Supreme Court of Oklahoma

Decided: December 8, 1942

Syllabus

¶0 1. WORKMEN'S COMPENSATION-Compensable injuries must arise out of and be received in course of employment covered by statute.

The jurisdiction of the State Industrial Commission to award compensation for disability resulting from injury is confined to accidental personal injury which arises out of and received in the course of an employment defined as hazardous by the Workmen's Compensation Act. 85 O. S. 1941 § 11.

2. SAME--Injury sustained by employee in play for his own amusement not compensable.

An injury sustained as the result of play indulged in by an employee for his own amusement does not arise out of the employment, and any disability resulting therefrom is not compensable.

3. SAME - Award based on finding of fact unsupported by competent evidence will be vacated by reviewing court as matter of law. .

An award of the State Industrial Commission based upon a material finding of fact which is unsupported by any competent evidence will, on review, be vacated by this court as a matter of law.

Original proceeding in the Supreme Court by the Eagle-Picher Mining & Smelting Company to obtain review of award made by the State Industrial Commission in favor of George Arnold Davison. Award vacated, with directions.

John R. Wallace, of Miami, John Campbell, of Joplin, Mo., and A. C. Wallace, of Miami, for petitioner.

Claud Briggs and John Morrison, both of Oklahoma City, and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 This is an original proceeding in this court brought by the Eagle-Picher Mining & Smelting Company, hereinafter referred to as petitioner, to obtain a review of an award which was made by a trial commissioner and subsequently affirmed by the State Industrial Commission in favor of George Arnold Davison, hereinafter referred to as respondent.

¶2 On October 22, 1941, the respondent was employed as a truck helper in the Henryetta smelter of the petitioner. The duties of the respondent were to assist in loading the truck with coal, and in this he was assisted by another employee. When the truck was loaded one of the helpers would accompany the truck to its destination and the other would remain at his post until the truck returned. On the date of the accident here involved an employee of the petitioner had found a dynamite cap and placed it up on a bench out of the way. The respondent, while waiting for the return of his truck, found this dynamite cap and began playing with it and amusing himself by striking the cap against objects and by attempting to frighten his fellow employee therewith by pretending that he was going to touch a match to the cap. While so amusing himself with said cap it exploded in his hand causing severe injury to his left hand. The respondent on November 14, 1941, filed a claim for compensation on account of disability which resulted from the injury. The petitioner denied liability and assigned as reason therefor that the injury did not arise out of employment. As a result of hearings held to determine liability and extent of disability, the trial commissioner found, in substance, that the injury had arisen out of and in the course of employment, and that it had resulted in 60 percent permanent partial disability to respondent's left hand, and awarded compensation for temporary and permanent partial disability.

¶3 The petitioner contends here that the finding of fact that the injury of respondent arose out of his employment is without the support of any competent evidence, and that likewise the finding that the injury resulted in a 60 percent disability to respondent's left hand is unsupported by any competent evidence. It will not be necessary for us to consider this latter contention.

¶4 Under the provision of the Workmen's Compensation Act (85 O. S. 1941 § 11) compensation is payable only for disability which results from an accidental personal injury which arises out of and is received in the course of an employment which is covered by the act. As said in Indian Territory Illuminating Oil Co. v. Lewis, 165 Okla. 26, 24 P.2d 647:

"As used in the Workmen's Compensation Law of this state, the terms 'arising out of' and 'in the course of' are not synonymous, but are conjunctive terms; the words 'out of' referring to the origin and cause of the action, and the words 'in the course of' to the time, place and circumstances under which it occurred."

¶5 See, also, ...