Standard Oil Co. v. Smith
Decision Date | 18 March 1941 |
Docket Number | 2181 |
Citation | 111 P.2d 132,56 Wyo. 537 |
Parties | STANDARD OIL CO. v. SMITH |
Court | Wyoming Supreme Court |
ERROR to the District Court, Washakie County, P. W. METZ, Judge.
Proceeding under the Workmen's Compensation Act by Margaret Smithclaimant, for the death of Willis A. Smith, opposed by the Standard Oil Company, employer.To review an order awarding compensation, the employer brings error.
Affirmed.
For the plaintiff in error, the cause was submitted on the briefs of Hagens & Wehrli, and W. H. Brown, Jr., all of Casper.
The claimant as appears from the evidence was not engaged in the discharge of any duties within the course of his employment at the time of the accident causing his death.There was no casual connection between said employment and the accident and therefore his death is not compensable.Chapter 124, Sec 106-7, Paragraph (1), W. R. S. 1931.Where an accident was not peculiar to the employment of deceased, nor to the industry in which he was employed, there is nothing compensable within the meaning of Workmen's Compensation Acts.Ryan v. Industrial Board(Mont.)45 P.2d 775;Nowalek v. Cons. R. Co.(N. Y.)128 N.E. 888;Ellington L. Co. v. Industrial Commission(Wis.)169 N.W. 568;Gas Co. v. Union Bank & Trust Co.(Okla.)299 P. 159;Lumber Company v. Root(Okla.)23 P.2d 716;4th Dec. Dig. Vol. 33, Workmen's Compensation, Sec. 612.No facts or circumstances are shown in the case at bar taking it out of the rule governing ordinary automobile accidents upon the public highway.Dubbert v. Beucus(Ind.)185 N.E. 311.The agreed statement of facts bring the case within the rule announced in Fox Park Timber Company v. Baker,53 Wyo. 467, which made said employee an independent contractor.Continental Casualty Company v. Industrial Accident Commission(Cal.)190 P. 849;Hopkins v. Sugar Co.(Mich.)150 N.W. 325;London Company v. Industrial Commission(Calif.)213 P. 977;Greer v. Commission (Utah)279 P. 900;Industrial Commission v. Anderson(Colo.)169 P. 135;Eyrman v. Industrial Commission (Ohio)16 N.E.2d 502.A leading case analogous to the case at bar is Mark's Dependents v. Gray(N. Y.)167 N.E. 181.
For the defendant in error, the cause was submitted on the brief of Joseph O. Spangler of Greybull.
The questions of law involved in this case are whether decedent met his death as a result of his employment and while so at work; whether decedent was an independent contractor at the time of his death and whether decedent was injured in an accident to which the public generally is subjected and therefore not within the scope of the Workmen's Compensation Law.The question whether decedent was an independent contractor was not in issue and not even presented at the hearing.The general rules with respect to independent contractors are set forth in 71 C. J. 445-449 and in 27 Amer. Juris. 485.The employer paid into the compensation fund assessments upon the commissions earned by decedent, clearly showing that he was rated as an employee.27 Amer. Juris. 502, Sec. 23.Decedent was paid by his employer for hauling the oil from Casper to Greybull on the day of his death and he devoted his entire time to the operation of the bulk station.He was not therefore an independent contractor.Gulf Refining Company v. Brown,93 F.2d 870, 116 A. L. R. 449; see also annotations on street risks at 29 A. L. R. 120;36 A. L. R. 474and51 A. L. R. 509;28 R. C. L. 805;71 C. J. 751.Laws of this class are liberally construed in Schneider, Workmen's Compensation Law, Vol. 2, Sec. 576, pp. 2130-33;Bakery v. Schryver,43 Wyo. 108;Baldwin v. Scullion(Wyo.)62 P.2d 531;Sakamoto v. Kemmerer Coal Co.,36 Wyo. 325;McConnell v. Murphy Bros.,45 Wyo. 289;Koprowski v. Megeath Coal Co.,48 Wyo. 334.One of the recent cases that is controlling of the instant case is Beem v. Mercantile Company(Mo.)85 S.W.2d 441;Irvin-Neisler & Co. v. Industrial Commission,346 Ill. 89;Kennedy-Van Saun Mfg. Corp. v. Industrial Commission(Ill.)189 N.E. 916;Schneider's Workmen's Compensation Law, Vol. 1, pp. 741-44, 746, 751-752, 799, 800-801, 803, 832;Vol. 3, pp. 90, 98;Vol. 4 Supp. 425, 446;Vol. 5 Supp. 788, 794, 799;Vol. 6 Supp.p. 1103;Heberson v. Coal and Wood Company(Mont.)273 P. 294.Plaintiff in error relies on the case of Mark's Dependents v. Grey, but a close reading of the case will show that it is without application to the case at bar.We direct attention to Laws of Wyoming 1937, Chapter 128.We believe the contentions of defendant in error are sustained by the foregoing authorities.
This is a proceeding in error to review an order under the Workmen's Compensation Law(§ 124-101, et seq., R. S. 1931) awarding compensation to the dependent family of a deceased workman.The reports of accident show that the workman was employed as "commission agent" by the Standard Oil Company of Indiana engaged in the "production and distribution of petroleum products."The issue, raised by the employer's report in which it was alleged that the accident did not grow out of the employment, was tried on an agreed statement of the facts.The facts are these (quoted words being the language of the agreed statement):
The workman "at the time of his death" was operating a "bulk gasoline station" near Greybull, Wyoming."In order to operate the station he obtained gasoline and oil" from the employer and sold it to retailers "on a commission basis."He obtained the gasoline and oil from time to time "as his business needs required;" about 95 per cent. was obtained by him from Casper, Wyoming, sometimes delivered at Greybull by the employer, sometimes hauled from Casper to Greybull by the workman in his own truck, and sometimes delivered by carriers.When the workman himself hauled the gasoline and oil it was the custom of the employer to pay him according to a fixed schedule of rates per one hundred pounds.The workman received no fixed wage or salary.
On January 25, 1940, the workman was returning to his home at Greybull from a vacation trip, "and was going to resume the work of his occupation on January 26, 1940, which was the termination of his vacation."When he came through Casper there were delivered to him by the employer two barrels of oil "which he proceeded to carry back to Greybull" in a "pick-up" truck he was driving.On the road to Greybull, 3 1/2 miles north of Worland, at 3:30 o'clock in the afternoon of January 25, he was fatally injured in a collision with another motor vehicle."On this same return trip to Greybull, the decedent had planned and intended * * * to stop in the towns of Manderson and Basin, Wyoming, for the purpose of picking up gasoline and oil delivery tickets and making collections of money for said oil and gasoline which had been previously delivered, and during his absence; and upon arriving in Greybull he planned and intended to do necessary work, if any, in connection with his employment, as much as the time would permit."
"As a matter of practice the decedent, in hauling his own supplies from Casper, generally waited until he had [sic] sufficient oil and gasoline to make a load equal to between 18 and 20 barrels."The amount which would ordinarily be paid him for hauling two barrels was approximately $ 5.50, "not sufficient to pay the ordinary expense of traveling from Greybull to Casper and return with a pick-up truck and driver * * * and he would not ordinarily have made a trip to Casper in his pick-up truck to get two barrels of oil alone; * * * the only reason that he picked up the two barrels of oil at Casper on January 25, 1940, to take them to Greybull, was that he was returning from his vacation trip anyway and could carry that amount of oil for his business purposes without any additional expense."
The employer has been paying into the Workmen's Compensation fund the "regular employer's assessment upon the commissions earned" by the workman while he operated the bulk station at Greybull, and handled the products of the employer.
It was also agreed that the case should be submitted on these facts alone, and that they constituted "the whole of the material facts in this case upon all of the issues involved."
Extra hazardous employments listed in the Workmen's Compensation law include "bulk oil stations."§ 124-104, R. S. 1931, last amended by § 1, ch. 118,Sess. Laws 1939.
"Injuries sustained in extrahazardous employment," as used in the act, "include death resulting from injury, and injuries to employes, as a result of their employment and while at work in or about the premises occupied, used or controlled by the employer, and injuries occurring elsewhere while at work in places where their employer's business requires their presence and subjects them to extrahazardous duties incident to the business, but shall not include injuries of the employe occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence;"Section 124-106-7, supra,subsection (1).
The district...
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