Nelson Elec. Mfg. Co. v. Cartwright
| Decision Date | 30 November 1954 |
| Docket Number | No. 36322,36322 |
| Citation | 277 P.2d 163 |
| Parties | NELSON ELECTRIC MANUFACTURING COMPANY, own risk, Petitioner, v. Lige CARTWRIGHT and the State Industrial Commission of the State of Oklahoma, Respondents. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where an employee engaged in a hazardous employment and performing work he was employed to do, sustains an injury resulting from an assault upon him by a fellow employee, which assault was provoked by the fellow employee, and in which the latter was the aggressor, said injury constitutes an 'accidental injury' arising out of and in the course of his employment.
2. Under the provisions of 85 O.S.1951 § 24, the State Industrial Commission is authorized to excuse the giving of the statutory written notice provided therein; and if there is any competent evidence sustaining its finding that the employer has not been prejudiced by failure to give the statutory written notice, a finding thereon will not be disturbed on review.
3. In the case of an injury resulting in hernia, compensation is limited, under the provisions of 85 O.S.1951 § 22, par. 3, to 14 weeks and the cost of an operation, unless the hernia results in total permanent disability, in which event, compensation may be awarded for total permanent disability.
4. An employee who sustains an accidental injury resulting in a hernia, and an injury to his back, is entitled to recover statutory compensation for his hernia and, in addition thereto, compensation for such disability as he has sustained as a result of his back injury alone, but an award for permanent partial disability to the body as a whole based on the combined disability from both injuries will be vacated for further proceedings.
Kothe & Huff, Tulsa, for petitioners.
John L. Dunn, Tulsa, Mac Q. Williamson, Atty. Gen., for respondents.
This is a proceeding brought by Nelson Electric Manufacturing Company, its own insurance carrier, to review an award of the State Industrial Commission awarding compensation to Lige Cartwright, respondent.
Respondent in his claim for compensation states that on May 26, 1952, while in the employ of petitioner he sustained an accidental injury consisting of an injury to his back and a hernia, which injury was caused by a fellow employee striking him and knocking him down, causing him to fall into machinery.
The trial commissioner to whom the case was assigned found at the close of the evidence that: On May 26, 1952, respondent was the aggressor in an altercation with a fellow employee at petitioner's plant and that by reason thereof, the injuries received by him are not compensable under the Workmen's Compensation Law, 85 O.S.1951 § 1 et seq.; and entered an order denying compensation.
The Commission en banc on appeal vacated the order and in lieu thereof made the following findings and award: On May 26, 1953, (record shows 1952) respondent while in the employ of petitioner and engaged in operating a buffing machine sustained an accidental injury arising out of and in the course of his employment as follows: an employee struck respondent and knocked him into the machinery causing a back injury and an umbilical hernia; that respondent is entitled to compensation for 14 weeks for his hernia in the amount of $350. And in finding No. 6 the Commission found:
'That as a result of said injury the claimant sustained 35% permanent partial disability to his body as a whole, by reason of his operation and an injury to his back, for which he is entitled to compensation for 175 weeks at $25.00 a week, or the total sum of $4,375.00, of which 67 weeks, or the sum of $1,675.00 has accrued from September 6, 1952, the date of which temporary total compensation payment for claimant's hernia would have ceased, to December 20, 1953, and the sum of $1,675.00 as well as the $350.00 heretofore mentioned shall be paid to claimant in a lump sum; and that the balance of the permanent partial disability award herein made shall be paid to claimant in weekly payments of $25.00 a week from December 20, 1953.'
The Commission further found that petitioner had actual notice of the injury sustained by respondent and therefore was not prejudiced by reason of his failure to give written notice of his injury in the time and manner provided by statute. Upon such finding the Commission awarded compensation to respondent in the sum of $4,375 for permanent partial disability to the body as a whole and the sum of $350 compensation due him for the injury resulting in hernia.
Petitioner brings the case here to review the award. Its first contention is that the evidence conclusively establishes that if claimant received any injury on May 26, 1952, it was the direct and proximate result of his action as an aggressor in a fight with a fellow employee growing out of a 'horseplay' situation in which he participated, and did not arise out of his employment.
Bearing upon this contention respondent testified in substance: On May 26, 1952, while in the employ of petitioner and engaged in operating a buffing machine, a fellow employee by the name of Duckett was hit by a small welding bolt thrown by another employee. Mr. Duckett accused him of throwing the bolt but he told Duckett he had not. Mr. Duckett then came close to him, placing his head in his face. He pushed him away and in so doing Duckett's glasses fell off and dropped to the floor. Mr. Duckett then left the department in which he was working and went to work on another floor. However, shortly thereafter he returned and picked up his glasses, struck respondent knocking him over backwards, and his back and head fell against a large panel behind him. The blow rendered him unconscious for several minutes and as a result of his injury he sustained a hernia and injury to his back. He further testified however that he thought the hernia had developed ten days before he sustained his present injury while engaged in lifting an angle iron, but when he sustained his present injury 'it busted it open.'
Mr. Duckett had a different version as to the altercation. He testified that when he entered the department in which respondent was working, a fellow employee threw a welding nut which hit respondent and respondent accused him of throwing it and threatened to whip him and struck him in the face with his open hand, he did not hit him with his fist. He further testified that he did not at that time make any effort to strike respondent, but after the altercation he immediately left and went to the basement.
A short time thereafter he came back and asked respondent for his glasses. Respondent used some curse words, and pointed to the floor and said there are your glasses. He picked up the glasses and struck respondent knocking him down. He stood and watched him fall. Respondent made no effort at that time to strike him, but after respondent got up from the floor, he came toward him with an open knife in his hand. Petitioner's foreman who was present at the time stepped between the parties and prevented further trouble.
While the evidence is in conflict in some particulars, we think it is sufficient to justify the finding that the assault was provoked by Mr. Duckett and that he was the aggressor; and sufficient to sustain the conclusion of the Commission that the injury sustained by respondent constitutes an accidental injury, and that it arose out of and in the course of his employment. Indian Territory Illuminating Oil Co. v. Jordan, 140 Okl. 238, 283 P. 240; Stasmas v. State Industrial Commission, 80 Okl. 221, 195 P. 762, 15 A.L.R. 576; Swift & Co. v. Forbus, 201 Okl. 516, 207 P.2d 251, and other authorities cited in Town of Granite v. Kidwell, Okl., 263 P.2d 184.
Petitioner's second contention is that there is no competent evidence to sustain the finding of the Commission that it had actual notice of the injury sustained by respondent and was not prejudiced by reason of the failure of respondent to give written notice of the injury within 30 days as provided by statute. 85 O.S.1951 § 24.
It is conceded that respondent did not give written notice of his injury in the time and manner...
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