Petroleum Chem. Corp. v. State Indus. Com

• Decision Date: 01 December 1931
• Docket Number: Case Number: 22403
• Citation: 154 Okla. 67,6 P.2d 775,1931 OK 750
• Parties: PETROLEUM CHEMICAL CORP. et al. v. STATE INDUSTRIAL COM. et al.
• Court: Oklahoma Supreme Court

1931 OK 750

6 P.2d 775

154 Okla. 67

PETROLEUM CHEMICAL CORP. et al. v. STATE INDUSTRIAL COM. et al.

Case Number: 22403

Supreme Court of Oklahoma

Decided: December 1, 1931

Syllabus

¶0 1. Master and Servant--Workmen's Compensation--Presumptions and Burden of Proof as to Claim Being Within Provisions of Law.

The burden is upon a claimant before the State Industrial Commission to prove that the relationship of employer and employee in a business within the terms of the act existed at the time of the injury complained or, but when that relationship is shown there is a presumption, by reason of section 7295, C. O. S. 1921, that the claim comes within the provisions of the act.

2. Same -- Showing Necessary to Secure Compensation.

Where a claimant was performing manual labor in a hazardous employment as an employee when injured, and the injury arises out of and in the course of the employment, he is entitled to compensation for the disability sustained, in the absence of a showing that the employment did not come within the provisions of the Workmen's Compensation Act.

3. Same--Compensation for Injuries Aggravating or Accelerating Disease.

The fact that an employee had a disease at the time he was injured does not prevent him from recovering compensation for the injury sustained, if the effect of the injury was to aggravate or accelerate the disease with which he was suffering and thereby to disable him from performing the duties in the performance of which he was engaged at the time of the injury.

4. Same--Award Sustained.

Record examined, and held to support the award of the State Industrial Commission.

Original proceeding in the Supreme Court by the Petroleum Chemical Corporation et al. to review award of State Industrial Commission to R. C. Thomas. Affirmed.

Abernathy & Howell, for petitioners.

Fred A. Graybill, for respondent.

ANDREWS, J.

¶1 This is an original proceeding in this court to review an award of the State Industrial Commission in favor of the claimant therein, respondent herein, against the petitioners herein. The State Industrial Commission found:

"(1) That claimant, on and prior to March 24, 1930, was in the employment of this respondent and engaged in a hazardous occupation covered by and subject to the provisions of the Workmen's Compensation Law..

"(2) Arising out of and in the course of his said employment, claimant on March 24, 1930, sustained an accidental personal injury, as a result of which he was temporarily totally disabled from June 21, 1930, to November 1, 1930;"

(3) As a further result of said injury claimant suffered the loss of the left leg by amputation;

"(4) That the average wage of claimant at the time of said injury was $ 200 per month"

--and made an award based on those findings.

¶2 The petitioners present two propositions as follows:

"The claimant's employment was not such an employment as would bring him within the purview of the Workmen's Compensation Act."

"The claimant at the time of his injury was not engaged in the course of his employment, nor did his injury arise out of or in the course of such employment."

¶3 The petitioners assert that the burden is upon the claimant to establish the fact that he is in a class embraced within the provisions of the Workmen's Compensation Act, and that nothing can be presumed or inferred in this respect. In support thereof they cite the decision of this court in Hamilton v. Randall, 136 Okla. 170, 276 P. 705. The decision cited does not sustain that contention. It holds only that the burden is upon a claimant to prove that the relationship of employer and employee existed at the time of the injury. When the relationship of employer and employee has been shown, there is a presumption that the claim is within the provisions of the Workmen's Compensation Act. Bishop v. Wilson, 147 Okla. 224, 296 P. 438. In that case it was held:

"Under the Workmen's Compensation Act (paragraph 1 of section 7295, C. O. S. 1921), providing that there shall be a presumption that a claim comes within the provisions of the act in the absence of substantial evidence to the contrary, the Industrial Commission must presume that the business conducted by the employer was within the provisions of the act defining 'hazardous employments' in the absence of such substantial evidence."

¶4 The record shows that the claimant at the time of the injury was an employee of the petitioner and that he was acting at that time under the direction of his superior. We are not concerned with the nature of his duties at some other time and we are considering his duties and his occupation at the time of his injury. With reference thereto the petitioner showed by evidence that the claimant was employed as "assistant engineer" under one Liddell, the "chief engineer"; that on the night of the injury a fire occurred so close to the plant of the petitioner as to endanger the property of the petitioner; that the chief engineer directed the claimant "with two other pipe fitters to make some temporary connections at the alcohol plant itself to permit the use of one of our plant lines at that time leading to and conducting material from the plant to about 1,500 feet away from the plant"; and that the injury occurred while the claimant was so engaged in the protection of his employer's property. With reference thereto the chief engineer testified:

"A. This tank fire occurred about 12:15 a. m., on March 24th, at which time I was at home. The blowing of the fire siren took me down to the plant. I did no active work in the fighting of the fire, but confined my operations to the removal of the light butene fraction in the storage tank about 250 feet from the scene of the fire, which belonged to the Chemical Petroleum Corporation. The removal of this material from this location consisted of laying considerable two-inch pipe line, strung on the ground. On completion of this line, Thomas and several men were delegated to watch the burning of this material. This burning commenced, as I remember it about 6 o'clock in the morning and continued until about two o'clock in the afternoon, at which time all of this hazardous material was removed. Q. What orders did you give Mr. Thomas, at this time, if any? A. We had a consultation at the scene of the fire and agreed that this light material should be removed from the scene. I delegated Thomas with two other pipe fitters to make some temporary connections at the alcohol plant itself to permit the use of one of our plant lines at that time leading to and conducting material from the plant to about 1,500 feet away from the plant. He organized the pipe fitting on the line but did no actual pipe fitting. He was superintending the fitting of the pipe, getting the pipe from the storage and fitting it, and so on. Q. Then you ordered Mr. Thomas to superintend the laying of the line in order to remove this material belonging to the Chemical Petroleum Corporation from the scene of the fire? A. Yes, sir. Q. Was this within the line of his employment under ordinary conditions? A. Not under ordinary conditions"

--and:

"Q. Mr. Liddell, do you recall whether or not Mr. Thomas made any complaint this particular night of an injury, which he claims to have sustained at that time? A. Yes. sir. Q. What report did he make to you of that injury? A. He stated that he had stumbled and I am not sure whether he actually fell or not, but he fell over some of the lines in the plant and stated he hurt his foot, his foot was bruised and was paining him. Q. What did you advise him to do at that time? A. I asked him how serious it was and he thought it was simply bruised and I asked him if he thought he could carry on with us at that time, and he believed he could and he stayed with us during the course of that fire. Q. Did he return to work the next day? A. Yes, sir; as I remember, he did. Q. Did he work for some little period after this injury? A. Yes, sir. Q. Do you recall approximately what length of time he worked after he sustained--after this particular night? A. I don't recall exactly. I believe it was about ten or fourteen days. Q. On this particular night, did you call out Mr. Thomas or was he on duty at that time, carrying out

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