R.S. Smith Const. Co. v. Swindell

• Decision Date: 28 March 1939
• Docket Number: 28589.
• Citation: 89 P.2d 947,185 Okla. 35,1939 OK 178
• Parties: R. S. SMITH CONST. CO. et al. v. SWINDELL et al.
• Court: Oklahoma Supreme Court

89 P.2d 947

185 Okla. 35, 1939 OK 178

R. S. SMITH CONST. CO. et al. v. SWINDELL et al.

No. 28589.

Supreme Court of Oklahoma

March 28, 1939

Rehearing Denied May 2, 1939.

Syllabus by the Court.

1.Where the injured employee files a claim which designates his employment as hazardous within the definition of sections 13349, 13350, O.S.1931, 85 Okl.St.Ann. §§ 2 and 3, and the employer and insurance carrier do not deny that the employment is hazardous or make an issue of such employment in the State Industrial Commission, the presumption arises that the employment is hazardous.Section 13361, O.S.1931, 85 Okl.St.Ann. § 27.

2.Under subdivision 2 of section 13355, O.S.1931, 85 Okl.St.Ann. § 21, if an employee who is injured has not been working in such employment during substantially the whole of such year, his average annual earnings shall consist of 300 times the average daily wage or salary which an employee in the same class working substantially the whole of such immediately preceding year in the same or similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.

3.Where a claimant submits evidence of the average daily wage of a like employee under said subdivision 2 and such evidence is not objected to by the employer, and the employer does not offer any proof on its part of the average daily wage as provided by said subdivision, and the evidence reasonably sustains the finding, the award of the commission based thereon will not be disturbed by this court.

4.It is the settled rule that, where the injuries complained of are of such a character as to require skilled and professional men to determine the cause and extent thereof the question is one of science and must necessarily be determined by the testimony of skilled and professional persons.

5.The findings of fact by the State Industrial Commission are conclusive upon this court and will not be disturbed where there is any competent evidence reasonably tending to support the same.

Original proceeding in the Supreme Court to review an award of the State Industrial Commission in favor of Eugene Swindellclaimant, against the R. S. Smith Construction Company employer, and the Traders & General Insurance Company.

Award affirmed.

Gibson & Savage and Sam Glassman, all of Oklahoma City, for petitioners.

Tom C. Waldrep and Shelton Skinner, both of Shawnee, and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

The petitionerR. S. Smith Construction Company is engaged in the highway construction work.The respondentEugene Swindell is a laborer and at the time of the injury was engaged in driving a caterpillar tractor for the R. S. Smith Construction Company.

On October 3, 1936, the respondent, while working on the highway of the State of Oklahoma, near Shawnee, Oklahoma, sustained an accidental injury when he crushed his leg and foot when the caterpillar tractor turned over.Various reports were made to the State Industrial Commission and after the report of initial payment for temporary total disability the respondent filed his first notice of injury on October 28 1936.Thereafter total temporary disability was paid to and including January 11, 1938, and on March 4, 1938, the matter came on for its first hearing before the Commission.There were subsequent hearings on March 30, April 1, and April 11, 1938.Following all of these hearings on April 19, 1938, the State Industrial Commission entered an award for temporary total disability.Petitioners seek to vacate the award.

It is first urged that there is no competent evidence that the respondent was engaged in hazardous employment.Petitioners did not deny that respondent was engaged in hazardous employment, in the proceedings before the State Industrial Commission.They admitted that the respondent was employed by the petitionerR. S. Smith Construction Company, who was engaged in the operation of tractors in highway construction work.There is competent evidence that the employment of the respondent was hazardous.Where the injured employee has filed a claim listing an employment declared hazardous by sections 13349 and 13350, O.S.1931, 85 Okl.St.Ann. §§ 2 and 3, in the absence of a denial by the employer a presumption arises that the work of the employee was hazardous and the admission of the employer as to the nature of the work may be considered by the State Industrial Commission in making its findings.Maryland Casualty Co. v. Johnson,134 Okl. 174, 272 P. 833;Cowan v. Watson,148 Okl. 14, 296 P. 974;Continental Baking Co. v. Campbell,176 Okl. 218, 55 P.2d 114;Sterling Milk Products Co. v. Underwood,167 Okl. 361, 29 P.2d 937;Section 13361, O.S.1931, 85 Okl.St.Ann. § 27;Protho v. Nette,173 Okl. 114, 46 P.2d 942;Enid Cemetery Ass'n v. Grace,177 Okl. 320, 59 P.2d 284;Dillon v. Dillman,133 Okl. 273, 272 P. 373.

Petitioners allege that there is no competent evidence of temporary total disability.Physicians testified that the leg had not healed and that the respondent has a back injury that had not reached a degree of permanency at the date of the last hearing and that the respondent is unable to perform manual labor because of the disability.The decision of the State Industrial Commission is final as to all questions of fact where there is competent evidence reasonably tending to support such finding.Magnolia Pet. Co. v. Ellis,169 Okl. 58, 35 P.2d 958.It is a settled rule that where the injuries complained of are of such a character as to require skilled and professional men to determine the cause and extent...