Renfro v. Storey

• Decision Date: 10 May 1932
• Docket Number: Case Number: 22601
• Citation: 158 Okla. 285,1932 OK 369,13 P.2d 124
• Parties: DEATHERAGE & RENFRO et al. v. STOREY et al.
• Court: Oklahoma Supreme Court

1932 OK 369

13 P.2d 124

158 Okla. 285

DEATHERAGE & RENFRO et al. v. STOREY et al.

Case Number: 22601

Supreme Court of Oklahoma

Decided: May 10, 1932

Syllabus

¶0 Master and Servant--Workmen's Compensation Law--Injuries to Sole Employee of Partnership not Compensable.

Award is vacated, as there was only one employee of the partnership, composed of Deatherage & Renfro, and the case does not come within the Workmen's Compensation Law.

Original action in the Supreme Court by Deatherage & Renfro et al. to review award of the State Industrial Commission in favor of H. A. Storey. Award vacated.

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

O. H. Searcy and J. B. Underwood, for respondents.

KORNEGAY, J.

¶1 This is an original action to review an award of the Industrial Commission, which is as follows:

"Now, on this 22nd day of June, 1931, the State Industrial Commission being regularly in session, this cause comes on to be considered pursuant to having been duly set for hearing on the Tulsa, Okla., docket of June 19, 1931, before Commissioner Mat McElroy, to determine liability and extent of disability, at which hearing claimant appeared by his attorneys, Searcy & Underwood, and respondent and insurance carrier were represented by T. B. Rucker, at which time it was stipulated and agreed by and between said attorneys that the testimony taken in the case of H. A. Storey v. Chas. B. Eckes et al., being Case No. A-51827, shall be used by the Commission in rendering a decision herein.

"Having reviewed the testimony taken in said case No. A-51827 and all records on file in said case, as well as case No. A-62930, and being otherwise well and sufficiently advised in the premises, the Commission finds:

"1. That the claimant herein, on and prior to August 21, 1930, was in the employment of A. L. Deatherage and R. J. Renfro, doing business as Deatherage & Renfro, a partnership concern in which both respondents worked, and that claimant was 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 August 21, 1930, sustained an accidental personal injury in the nature of a sprain to his back, as a result of which he was temporarily totally disabled from the date of said injury to April 1, 1931;

"3. That the average wage of claimant at the time of said injury was $ 40 a week.

"The Commission is of the opinion, on consideration of the foregoing facts, that claimant is entitled to compensation at the rate of $ 18 per week, computed from August 21, 1930, less the statutory 5-day waiting period, to April 1, 1931, for the temporary total disability above described.

"It is therefore ordered: That within 15 days from this date, respondent, or its insurance carrier herein, pay to the claimant, H. A. Storey, the sum of $ 561, being compensation at the rate of $ 18 per week computed from August 26, 1930, to April 1, 1931, for the temporary total disability hereinbefore mentioned.

"It is further ordered: That within 30 days from this date, respondent or insurance carrier herein file with the Commission proper receipt or other report evidencing compliance with the terms of this order."

¶2 We have reviewed the evidence in this case. The evidence as to the party sustaining an accidental injury, that resulted in his disability in this case, is rather weak. It appears that he was suffering from pyelitis, ordinarily known as kidney trouble. It is defined in Dorland's Medical Dictionary, as follows:

"Inflammation of the pelvis of the kidney. It may be due to renal calculus, to extension of inflammation from the bladder, or to stagnation of the urine. It is attended by pain and tenderness in the loins, irritability of the bladder, remittent fever, bloody or purulent urine, diarrhea, vomiting, and a peculiar pain on flexion of the thigh."

¶3 It appears from the evidence that sometime in February, while working for another company than the Deatherage & Renfro partnership, he did receive a strain of some kind in the pelvic region, and after that, on May 19th, he received another injury while working for the Chas. R. Eckes Motor Company, and from that he was laid up in bed about ten days, and that he used hot applications and a liniment to rub on his back and took some kidney pills, and his brother came and took his place there, and sometime in July he undertook to work again, and he told Mr. Eckes, the proprietor, that he could not do the work he had been doing. Evidently this testimony was given in the case in which he was seeking compensation from Eckes.

¶4 As applied to the present case, he states that he went to work in August for Deatherage & Renfro, about the 3rd, and up to that time his back was pretty bad, and he worked for Deatherage & Renfro from August 3rd to the 21st, and he did just mechanical work, not heavy, as they knew of his condition, and they gave him light work, and that on the 21st he was lifting the wheel of a Dodge sedan, putting it on, trying to slide it on to the shaft, and "the same thing happened, and it went on the same as on the previous occasion. Mr. Deatherage helped me up and took me home." He went to Dr. Lewis then and was treated for his back, and it was about the same as it had been, and he went to work again about the 1st of April at the Rankin Service, and his back was still bothering him.

¶5 It is conceded, however, in the brief, that there may be some slight evidence showing an accidental injury while in the employ of Deatherage & Renfro, but earnest insistence is made that when he was working for Deatherage & Renfro he was not under the protection and requirements of the Workmen's Compensation Law, because the parties had only one employee, which was the claimant. We think that the evidence shows that conclusively in this case, though there is some dispute between the attorneys as to the effect of the evidence.

¶6 The evidence shows that Deatherage & Renfro were a partnership, engaged in the repairing of automobiles, and that during the 20 days that the claimant was in their employ they had no other employee, and neither of them drew wages from the partnership funds, and relied upon paying the expenses first, including the pay of the claimant here.

¶7 The testimony of Mr. Deatherage upon the point appears to be uncontradicted. The only qualification of not hiring more than one man was that "if we got in a lot of work, we put on enough men to take care of it," but for the three weeks that the claimant was in their employ, he was the only employee they had, though they were carrying insurance to cover accidents, and the witness was sure that if they had as many as two employees at one time, that the insurance company would pay it when they were hurt. On cross-examination, in response to the question of the court, he...