Nelson Elec. Mfg. Co. v. Shatwell
| Decision Date | 01 August 1950 |
| Docket Number | No. 34299,34299 |
| Citation | 1950 OK 209,222 P.2d 750,203 Okla. 417 |
| Parties | NELSON ELECTRIC MFG. CO. et al. v. SHATWELL et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Ordinarily 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.
2. Where the evidence shows that employees arriving at the plant of the employer, which was surrounded by a high fence, before the gate provided for their admission was open, habitually and customarily climed the fence in order to get into the plant and prepare for work, and that this practice was known to the employer and not forbidden by it, an injury sustained by an employee while climbing such fence when coming to work at the plant, is an injury arising out of and in the course of his employment and is compensable.
Pierce, Rucker, Mock, Tabor & Duncan, Tulsa, for petitioners.
Finch & Finch, Sapulpa, Mac Q. Williamson, Atty. Gen., for respondents.
This is an original petition filed in this court by Nelson Electric Company, and its insurance carrier, to review an award made by the State Industrial Commission to Leroy Shatwell.
From the record it appears that Shatwell, while employed by petitioner Nelson Electric Company, sustained an accidental injury on April 6, 1949; that the plant of respondent in Tulsa is surrounded by a fence some eight feet high; that Shatwell, being required to report for work at 7:00 o'clock in the morning, found the gate through which employees were supposed to enter the plant closed when he arrived at the plant at 6:45 a. m., and climbed the fence in order to get into the plant; that while climbing the fence he fell, fracturing his collar bone one inch from the left end.
Shatwell testified that he and the other employees in his department, twelve in number, frequently climbed the fence when they arrived at the plant and found the gate closed; that in order to change clothes and prepare for work, which began at 7:00 o'clock, it was necessary for him to enter the plant about fifteen minutes before 7:00 o'clock, and that frequently when he arrived at that time the gate would not be open and he would climb the fence. He testified that the other employees in his department habitually climbed the fence in order to get to work on time, and that on this particular morning, when he reached the plant, some seven or eight of the twelve employees in his department were already there, having climbed the fence prior to his arrival. This last statement is not disputed or contradicted by any witness. Three employees testified for petitioner that the gate was usually open in time for them to change clothes and get to work, but when they arrived early and the gate was not open they climbed the fence to get into the plant. The foreman whose duty it was to open the gate testified that he opened the gate anywhere from eighteen to twelve minutes before 7:00 o'clock, and that he had never told the men not to climb the fence. From all the testimony it appears that the employees in the department in which claimant was employed frequently climbed the fence, and that this practice was known to the foreman, and was not forbidden, but was permitted by him.
The only contention urged by petitioners is that the evidence does not show that claimant was injured in the course of his employment or that the injury arose out of the employment. They urge that claimant had a safe and usual method of entrance, and that when he undertook to enter the plant by another method, which was unsafe and hazardous, he was in effect a trespasser and not where he rightfully belonged on the premises as the result of his employment. In support of their contention they cite E. I. Du Pont De Nemours & Co. v....
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