Russell Flour & Feed Co. v. Walker

• Decision Date: 14 April 1931
• Docket Number: Case Number: 21914
• Citation: 148 Okla. 164,298 P. 291,1931 OK 136
• Parties: RUSSELL FLOUR & FEED CO. et al. v. WALKER.
• Court: Oklahoma Supreme Court

1931 OK 136

298 P. 291

148 Okla. 164

RUSSELL FLOUR & FEED CO. et al. v. WALKER.

Case Number: 21914

Supreme Court of Oklahoma

Decided: April 14, 1931

Syllabus

¶0 1. Master and Servant--Workmen's Compensation Law--Traveling Salesman Occasionally Delivering Merchandise Held not Engaged in Hazardous Work.

Where the facts and circumstances show that one is employed as a traveling salesman and collector for a wholesale and retail mercantile establishment, going to various towns in the state and incidental to such employment makes occasional deliveries of merchandise to accommodate the customers of the employer, held, that such employee is not engaged in manual or mechanical work or labor of a hazardous nature and does not bring himself within the provisions of the Workmen's Compensation Law, as defined by section 7284, C. O. S. 1921, as amended by Laws of 1923, chapter 61, sec. 2.

2. Same--Necessity That Work Be Hazardous.

Before a respondent can recover under the Workmen's Compensation Law, he must show that he was engaged not only in manual or mechanical work or labor, but that such work or labor was of a hazardous nature, as that term is used under section 7284, supra, and amendments thereof.

Original action in Supreme Court by the Russell Flour & Feed Company et al. to review award of Industrial Commission in favor of Wilbur A. Walker. Award set aside.

Owen & Looney, Paul N. Lindsey, and J. Fred Swanson, for petitioners.

Moss & Powell, for respondent.

McNEILL, J.

¶1 This action was commenced in this court to review an order and award of the State Industrial Commission.

¶2 The respondent, Wilbur A. Walker, was employed by the Russell Flour & Feed Company, a mercantile establishment, engaged in wholesale and retail business, in the capacity of traveling salesman and collector, whose duties required him to go from store to store to get orders for the company and collecting for same. His territory included the towns of Earlsboro, Troy, and Mounds, Okla. The respondent had just come out of one of the stores at Troy, and while walking along the streets of said town was injured by something flying off the wheel of a passing automobile which hit him in the eye, causing a complete loss of sight of that eye. The Commission found that the respondent was engaged in a hazardous employment and the respondent sustained an accidental personal injury arising out of and in the course of his employment with the petitioner, Russell Flour & Feed Company; that, as a result of a piece of gravel hitting him in the eye, he sustained a complete loss of vision to the right eye, and he was awarded compensation accordingly.

¶3 The petitioners present two propositions:

(1) The Industrial Commission had no jurisdiction to make the order in this case for the reason that claimant was not engaged in a hazardous employment subject to or controlled by the Workmen's Compensation Law, but was a traveling salesman, and not entitled to compensation.

(2) The Industrial Commission erred in finding that the claimant's injury arose "out of" his employment with the respondent.

¶4 In reference to petitioner's first proposition, as to whether or not claimant was engaged in a hazardous employment to entitle him to compensation under the Workmen's Compensation Law, it is necessary to examine the facts and circumstances surrounding the work of the respondent.

¶5 There seems to be no dispute as to the facts in this case, with the exception, however, that the respondent contends that in addition to his duties of a traveling salesman and collector he made deliveries of merchandise for the said petitioner, Russell Flour & Feed Company, from its wholesale house, in order to accommodate its customers. Such delivery work seems to have been more in the nature of incidentally obliging and accommodating some of the customers rather than in the general line of his duty in selling his products and collecting for same.

¶6 In determining this case it becomes necessary to ascertain if the respondent was an "employee," "engaged in a hazardous employment," as those terms are defined by the Workmen's Compensation Law. The Workmen's Compensation Law is statutory, and the party who seeks to recover compensation thereunder must come within the provisions of the act; some of the provisions of the act, deleted, applicable to this case, being as follows:

¶7 Section 7283, C. O. S. 1921, as amended by the act of the. Legislature, Laws 1923;, ch. 61, sec. 1, provides in part:

"Compensation provided for in this act shall be payable for injuries sustained by employees engaged in the following hazardous employments, to wit: * * * Wholesale mercantile establishment, employees employed exclusively as clerical workers excepted. * * *"

¶8 Section 7284, Laws 1923, ch. 61, sec. 2, provides:

"1. 'Hazardous employment' shall mean manual or mechanical work or labor connected with or incident to one of the industries, plants, factories, lines, occupations or trades, mentioned in section 7283 * * * of this act, but shall not include any one engaged in agriculture, horticulture, or dairy or stock raising, or in operating any steam railroad engaged in interstate commerce. * * *

"3. 'Employer,' except when otherwise expressly stated, means a person, partnership, association, corporation, and the legal representatives, of a deceased employer, or the receiver or trustee of a person, partnership, association, or corporation, employing workmen in hazardous employments. * * *

"4. 'Employee," means any person engaged in manual or mechanical work, in the employment of any person, firm, or corporation carrying on a business covered by the terms of this act. * * *

"15. Where several classes or kinds of work is performed, the Commission shall classify such employment, and the provisions of this act shall apply only to such employees as are engaged in manual or mechanical labor of a hazardous nature."

¶9 Under the terms of the aforesaid provisions, in this case, the petitioner, the Russell Flour & Feed Company, the employer, is engaged in employing workmen in "hazardous employments," but is the respondent, "the employee," in this so termed "hazardous employment," "engaged in manual or mechanical work" in the employment of his employer, the Russell Flour & Feed Company? And does said respondent, as employee, come within the provision of the act which provides as set forth in subdivision 15 of said act, that "the provisions of this act shall apply only to such employees as are engaged in "manual or mechanical labor of a hazardous nature"?

¶10 Webster's Unabridged Dictionary defines "manual," as:

"Of or pertaining to the hand, or hands. Done, made, or operated by, or used with the hand, or hands, as manual labor."

"'Mechanic,' pertaining to manual labor, involving manual skill. One who practices any mechanic art, trade; one skilled or employed in shaping or uniting materials, as wood, metal, etc., into any kind of structure, machine, or any other object requiring the use of tools or other instrument."

"'Mechanical' (as an adjective):

"1. Of, or pertaining to, or concerned with, manual labor; engaged in manual labor; of the artisan class.

"2. Of, or pertaining to, or concerned with, machinery or mechanism; made or formed by a machine or with tools; as mechanical precision; mechanical products.

"'Laborer'; A person who does work that requires strength rather than skill, as distinguished from artisan and from the professional classes."

¶11 The following are expressions of the courts:

The term "manual labor" has been defined by the Supreme Court of Illinois in the case of Grand Lodge Brotherhood v. Orrell, 69 N.E. 68, as follows:

"The term 'manual labor,' in its ordinary and usual meaning and acceptation, means labor performed by and with the hands, or hand, and it implies the ability for such sustained exercise and use of the hands, or hand, at a labor as will enable a person thereby to earn or assist in earning a livelihood."

"'Mechanic,' once synonymous with 'artisan,' is now commonly restricted to a workman who is skilled in constructing, repairing, or using machinery." State v. City of Ottawa, 84 Kan. 100, 113 P. 391; Mack v. Boots (Ariz.) 239 P. 795.

"In its broadest sense, a mechanic is any one who is a skilled worker with tools." Jackson v. State (Tex. Cr. Rep.) 117 S.W. 818.

The word "laborer," as follows:

"Whether an employee is a laborer * * * is generally a question of fact,- dependent upon whether his duties are mainly physical or mental." Buchanan v. Echols & Nix (Ga.) 70 S.E. 28.

¶12 In the case of Arizona Eastern Railway Co. v. Matthews, 180 P. 159, the Supreme Court of Arizona, in considering whether a bill clerk in a railroad office, who in returning from a restaurant where he had gone to get something to eat, fell into a pit and was injured, came within the provision of the act of one who was engaged in manual or mechanical work, states:

"'Mechanical labor' is labor performed by a mechanic or 'one who practices any mechanic art; one skilled or employed in shaping or uniting materials, as wood materials, etc., into any kind of structure, machine, or other object requiring the use of tools or other objects, an artisan.' Webster.

"Taken in connection with the context, we think, 'mechanical labor, is such skilled labor as is necessarily employed by employers in making and repairing tools and instruments used in the operation of the business. It is manual labor, but of the skilled kind. While the words 'manual labor' might be construed to mean clerical work, we do not think any such meaning attaches to them as they are used in the context. * * *

"Labor in any of the named occupations must mean actual physical contact with the dangerous instruments and means used in carrying on the business. One of the canons of interpretation of words used in a statute is that they must be taken in their common and ordinary sense, unless, from the context, it is evident some other meaning was intended. When we

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