Pawnee Ice Cream Co. v. Price

• Decision Date: 13 June 1933
• Docket Number: Case Number: 23544
• Parties: PAWNEE ICE CREAM CO. v. PRICE
• Court: Oklahoma Supreme Court

1933 OK 382

23 P.2d 168

164 Okla. 120

PAWNEE ICE CREAM CO. v. PRICE

Case Number: 23544

Supreme Court of Oklahoma

Decided: June 13, 1933

Syllabus

¶0 1. Master and Servant--Workmen's Compensation--Injury From Assault Committed by Employer in Sudden Fit of Insanity Held Compensable.

When an employer, engaged in the work with his employee, in a sudden fit of insanity makes an assault upon his employee while the latter is engaged in the work of the former at the regular place of his employment, the injury resulting therefrom is an accidental personal injury arising out of and in the course of the employment within the meaning of the term as used in the Workmen's Compensation Law.

2. Same--Worker Employed to Do Both Manual and Clerical Work Held Entitled to Compensation for Injuries Sustained While Engaged in Clerical Work.

Where the general terms of employment and duties of an employee require that he do manual or mechanical work or labor as occasion therefor arises, and he does do so in the regular course of his employment, although the general terms of his employment and his duties require that he devote the major portion of his time as a clerical worker, he is not an employee engaged as a clerical worker exclusively as excepted in section 7284, C. O. S. 1921, as amended by chapter 61, section 2, Session Laws 1923. And such employee, if otherwise entitled thereto, will be entitled to compensation even though he may have been engaged in clerical work at the immediate time of his injury.

Original action by the Pawnee Ice Cream Company and insurance carrier to review award of the State Industrial Commission in favor of Everett J. Price. Award affirmed.

Clayton B. Pierce, A. J. Follens, and Truman B. Rucker, for petitioners.

Charles Besly, for respondent.

WELCH, J.

¶1 J. R. Cates owned and operated the Pawnee Ice Cream Company at Pawnee, Okla. Among others he employed his son, Haskell Cates, and the claimant herein, Everett J. Price, his son-in-law. On December 12, 1930, J. R. Cates became violently insane, and, using a heavy hammer, struck his son, Haskell Cates, over the head several blows, then proceeded into the office room, separated from the balance of the plant by partition, where the claimant was then working on the books of the company, and with the same hammer struck claimant several blows on the head, inflicting serious injury.

¶2 Claimant lost no wages while disabled, and the only award of the Commission covered the hospital and medical bills. The employer and insurance carrier appealed from this award, and will be referred to herein as petitioners.

¶3 The employment engaged in was a "factory * * * where machinery is used," and a "creamery operated by power," and is one of the employments included in the Workmen's Compensation Act, section 7283, C. O. S. 1921.

¶4 The petitioners contend that claimant's injury was not an accidental injury arising out of and in the course of his employment. The other employee, Haskell Cates, in another cause was granted a similar award, and in the action reviewing that award this question was determined by the decision of this court in Pawnee Ice Cream Company v. Haskell Cates, 164 Okla. 48, 22 P.2d 347, and upon the authority of that case we hold that the injury received by this claimant, Everett J. Price, was an accidental injury arising out of and in the course of his employment.

¶5 Petitioners herein contend that claimant was not engaged in "hazardous employment." The facts are that claimant was a general employee of the Pawnee Ice Cream Company. It seems that he kept all of the books of the company, and handled most, if not all, of the clerical work of the company, and was so employed during most of his time, but, in addition thereto, it was part of his general employment and his duty to aid in making butter and ice cream, in starting the engines and in repairing and helping to repair the machinery, and that he regularly engaged in these duties when the occasion therefor arose, in addition to discharging his clerical duties. It seems clear, therefore, that the claimant was employed at manual on mechanical work and labor, and was engaged in "hazardous employment" within the provisions of section 7284, C. O. S. 1921, and that he, in this employment, did not come within the exception noted in that section wherein the section excepts "employees engaged as clerical workers exclusively."

¶6 The facts are, in this case, that claimant was employed generally and his duties required that he work at times as a clerical worker and at times at manual or mechanical work and labor.

¶7 The petitioners herein cite no authority for holding that one so employed is not entitled to compensation under our law.

¶8 Petitioners do cite Enid Sand & Gravel Company v. Magruder, 148 Okla. 67, 297 P. 271, but in that case the claimant was the president and general manager of the plaintiff in error, and he was properly held not to be an employee. And petitioners cite Russell Flour & Feed Company v. Walker, 148 Okla. 164, 298 P. 291, but in that case the claimant was employed as a traveling salesman and collector for plaintiff in error, and performed no manual or mechanical work and labor whatever, and was properly held to be not engaged in such manual or mechanical work or labor as to come within the provisions of our law. Petitioners also cite McQuiston v. Sun Company, 134 Okla. 298, 272 P....