Payton v. City of Anadarko

• Decision Date: 26 January 1937
• Docket Number: Case Number: 27228
• Citation: 64 P.2d 878,1937 OK 49,179 Okla. 68
• Parties: PAYTON v. CITY OF ANADARKO et al.
• Court: Oklahoma Supreme Court

1937 OK 49

64 P.2d 878

179 Okla. 68

PAYTON v. CITY OF ANADARKO et al.

Case Number: 27228

Supreme Court of Oklahoma

Decided: January 26, 1937

Syllabus

¶0 1. MASTER AND SERVANT - WORKMEN'S COMPENSATION LAW - Municipality Subject to Law When Engaged in Activities Enumerated as Hazardous.

The state, county, city, or any municipality when engaged in any occupation enumerated as hazardous in section 13349, O. S. 1931, acts in its corporate capacity and not in the exercise of its governmental functions, and is subject to the provisions of the Workmen's Compensation Law of this state, and the employees engaged in manual or mechanical work or labor connected with or incident to said employment are on a parity with those employed by private industries in the same occupation.

2. SAME.

An occupation which ordinarily is carried on by a private person for pecuniary gain does not lose its character as such when carried on by the state, county, city, or any municipality, and therefore is not excluded from the provisions of the Workmen's Compensation Act by reason of subdivision 5, section 13350, O. S. 1931; said subdivision has reference only to organizations or associations operating solely for purposes where the element of pecuniary gain is entirely absent.

3. SAME - Employee Injured While Cleaning out Sewer Held not Entitled to Compensation.

An employee who is injured while cleaning out a sewer for a city or municipality is not within the terms of the Workmen's Compensation Law and an order of the State Industrial Commission denying him an award will be affirmed.

Original proceeding in the Supreme Court by Wash Payton to vacate an order of the State Industrial Commission in favor of the City of Anadarko denying an award. Affirmed.

McFadyen & McFadyen, for petitioner.

Sam L. Wilhite and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 Claimant, as petitioner, seeks to vacate the order of the State Industrial Commission denying an award for a personal injury received March 19, 1935, while in the employ of the city of Anadarko and while engaged in working in the sewer department of such city. Petitioner relies upon Board of County Commissioners v. Whitlow, 88 Okla. 72, 211 P. 1021, and Whiteneck, Adm'x, v. Board of Commissioners of Woods County, 89 Okla. 52, 213 P. 865, while the respondent cites and relies upon the City of Muskogee v. State Industrial Commission, 150 Okla. 94, 300 P. 627. Petitioner states that those cases are in apparent conflict and that the latter opinion overlooked the former opinions.

¶2 Subsequent to those opinions we decided the case of Board of Commissioners of Tulsa County v. Bilby, 174 Okla. 199, 201, 50 P.2d 398, 400, in which these cases above cited, together with many others by this court, were analyzed and the apparent confusion in some of the opinions noted as follows:

"Subsequent to these decisions in the above cases, in the case of Oklahoma City v. Foster, 118 Okla. 120, 247 P. 80, 47 A. L. R. 822, and Oklahoma City v. Baldwin, 133 Okla. 289, 272 P. 453, this court had occasion to distinguish between the corporate and governmental functions of a municipality and the resulting liability or nonliability depending upon the capacity in which the municipality was acting at the time, and these decisions have tinged some of the subsequent decisions of this court involving the provisions of the Workmen's Compensation Law so that at first glance there appears to be some confusion in the rule to be followed. For this reason we deem it advisable at this time to briefly review the prior decisions of this court and to restate the applicable rule so that no confusion can in the future arise on this particular question. We find that in Mashburn v. City of Grandfield, 142 Okla. 247, 286 P. 789, the distinction between the corporate and governmental functions of a municipality in connection with the Workmen's Compensation Law was first raised, and therein it was held:

" 'Under Comp. Stat. 1921, sections 7283, 7284, a municipality becomes subject to the obligations imposed by the Workmen's Compensation Act only when such municipality is engaged in one of the hazardous occupations described or enumerated in said section 7283 of the Statutes.' "

¶3 After a review of the cases subsequent thereto we further say (p. 202, 174 Okla):

"Thereafter, in the case of Board of Com'rs of Marshall County v. Lacy, 161 Okla. 138, 17 P.2d 398, the rule previously announced by this court in Whiteneck, Adm'x, v. oard of Com'rs of Woods County, 89 Okla. 52, 213 P. 865, and Board of Com'rs of Pawnee County v. Whitlow, 88 Okla. 72, 211 P. 1021, was reannounced and followed."

¶4 We then review City of Duncan v. Ray, 164 Okla. 205, 23 P.2d 694; City of Tulsa v. Hunt, 164 Okla. 262, 23 P.2d 640; Board of Commissioners of Garfield County v. Sims, 166 Okla. 298, 27 P.2d 633. A reading of these cases will readily reveal the facts involved and the principle announced and we will refrain from analyzing them here. We then therein stated (p. 202, 174 Okla.):

"We think it is fairly deducible from a reading of the Workmen's Compensation Act itself and of the above-quoted decisions that it was the purpose of the Legislature to place the employees of the state, county, city, or any municipality on a parity with the employees of private industries whenever the state, county, city, or any municipality is engaged in any of the occupations enumerated and specifically declared to be hazardous by the statutes. Where the occupation is such that it might be carried on by private individuals for pecuniary gain and is not peculiar to governmental functions, we are of the opinion that an occupation which ordinarily is carried on by private persons for pecuniary gain does not lose its character as such when engaged in by the state, county, city, or any municipality, and therefore is not excluded from the provisions of the Workmen's Compensation Act by reason of subdivision 5 of section 13350, O. S. 1931, but that said subdivision was intended to apply to organizations or associations operated and conducted solely for purposes wherein the element of pecuniary gain is entirely absent and that a municipality when engaged in any of the occupations enumerated in section 13349, O. S. 1931, is so engaged for pecuniary gain and therein operates in its corporate and not in its governmental capacity.

"Since construction of 'public roads' is enumerated in the Workmen's Compensation Act as one of the hazardous occupations in which the employee shall be entitled to compensation under the provisions of the act, from what has been said above it is apparent that the contention of the petitioner as advanced under the first proposition herein is without support either in the law or the decisions of this court and must be decided against the petitioner on this point."

¶5 Subdivision 14, section 13350, O. S. 1931, is as follows:

" 'Construction work' or 'engineering work' means improvement or alteration or repair of buildings, structures, streets, highways, sewers, street railways, railroads, logging roads, interurban railroads, electric, steam or water plants, telegraph and telephone plants and lines, electric lines or car lines,

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