Okla. City v. State Indus. Comm'n
| Decision Date | 10 May 1938 |
| Docket Number | Case Number: 28372 |
| Citation | 1938 OK 329,79 P.2d 575,182 Okla. 621 |
| Parties | OKLAHOMA CITY v. STATE INDUSTRIAL COMMISSION |
| Court | Oklahoma Supreme Court |
¶0 WORKMEN'S COMPENSATION - City Employee Injured While Collecting Garbage not Within Terms of Law.
An employee who is injured while engaged in the duties of collecting garbage for the city or municipality is not within the terms of the Workmen's Compensation Law, and an order of the State Industrial Commission awarding him compensation for an injury while engaged in such employment will be vacated.
Original proceeding in the Supreme Court by the City of Oklahoma City to review an award of the State Industrial Commission in favor of Walter Ashburn. Award vacated.
A.L. Jeffrey, Municipal Counselor, Robert L. Berry, Asst. Municipal Counselor, and J.O. Moss, for petitioner.
Claud Briggs and Mac Q. Williamson, Atty. Gen., for respondents.
¶1 The respondent Walter Ashburn was employed by the petitioner, the city of Oklahoma City, in its municipal garbage department. On July 2, 1936, he sustained an accidental injury when he strained his back while lifting a heavy garbage can in and about his duties as helper in the garbage disposal department of the said city. The parties will be referred to as they appear in this court, the city of Oklahoma City being petitioner and Walter Ashburn being respondent.
¶2 The first question presented is whether the city of Oklahoma City in operating the garbage department is within the provisions of the Workmen's Compensation Law. Both parties treat this as the main issue; the petitioner urging that in the operation of a garbage disposal department the petitioner is exercising a governmental function solely; the respondent takes the position that the petitioner is acting in a proprietary capacity.
¶3 We hold that the facts show as a matter of law that petitioner was operating the garbage department as a governmental function. Oklahoma City v. Baldwin, 133 Okla. 289, 272 P. 453; Payton v. Anadarko et al., 179 Okla. 68, 64 P.2d 878; Mashburn v. City of Grandfield, 142 Okla. 247, 286 P. 789; City of Muskogee v. State Industrial Comm., 150 Okla. 94, 300 P. 627; Barr v. Burrus, 156 Okla. 137, 9 P.2d 924; City of Ponca City v. Grimes, 144 Okla. 31, 288 P. 951; Town of Lindsay v. Sawyer, 156 Okla. 32, 9 P.2d 30; Board of County Commissioners v. Bilby, 174 Okla. 199, 50 P.2d 398.
¶4 It is urged that because the city derives profits from its operation of garbage disposal department through its garbage disposal contract and has some oil revenue from the land used as a dumping ground, this changes the governmental function, if it ever was one, to a proprietary function. It is further urged that because the city ordinances provide that private individuals may carry away garbage, trash, and rubbish, if they have a permit, this changes the nature of the function. That it has become a "business" in the sense that it is an enterprise engaged in by private individuals, therefore proprietary. Assuming that the ordinances referred to designated the garbage "business" along with the right to haul away rubbish and trash, which may be doubtful, we see nothing in any of these facts to cause us to conclude that petitioner was not operating a governmental function in its disposal of garbage. This theory, so far as it relates to pecuniary gain, is fully developed in Board of Commissioners v. Bilby, supra. Neither does the fact that petitioner removes garbage from homes and businesses only where the fee therefor is paid change the nature of the function. Cities are generally conceded the right to levy and collect fees or charges in connection with their health, police, and inspection departments.
¶5 Finally, it is urged that respondent comes within the rule announced in Oklahoma City v. Foster, 118 Okla. 120, 247 P. 80, which held that a city in the operation of a garage for the repair of its motor vehicles was liable in damages in an action at law. It is claimed that this principle is announced by this court in Wilson & Co. v. Musgrave, 180 Okla. 246, 68 P.2d 846. Respondent was an employee of the garbage department and was not an employee of a garage maintained by the city or performing any manual or mechanical labor incident to or connected...
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