Sterling Milk Products Co. v. Underwood

• Citation: 29 P.2d 937,167 Okla. 361,1934 OK 111
• Decision Date: 20 February 1934
• Docket Number: 24749.
• Parties: STERLING MILK PRODUCTS CO. et al. v. UNDERWOOD et al.
• Court: Supreme Court of Oklahoma

29 P.2d 937

167 Okla. 361, 1934 OK 111

STERLING MILK PRODUCTS CO. et al. v. UNDERWOOD et al.

No. 24749.

Supreme Court of Oklahoma

February 20, 1934

Syllabus by the Court.

1. When the jurisdiction of the State Industrial Commission depends upon a question of fact and that body in making a previous award had before it competent information to establish that fact, either in the form of an admission of fact, stipulation of fact, or testimony of witnesses, it is deemed to have inquired into its jurisdiction and determined the question of fact upon which its jurisdiction depends. Thereafter, in a proceeding to reopen the case and award further compensation upon the grounds of a change of condition, the jurisdictional fact previously determined is not open to inquiry.

2. Where the "Employer's First Notice of Injury" filed with the commission establishes the nature of employer's business as a wholesale mercantile establishment (one of the hazardous employments enumerated in section 7283, C. O. S. 1921) and classifies the employment of the claimant in such a way as to bring the same within the provisions of the act, such statements constitute admissions of fact upon which the State Industrial Commission was justified in determining that it had jurisdiction to approve a settlement and award compensation to the claimant.

3. When a question of fact upon which jurisdiction depends has been previously and properly determined in a case before the State Industrial Commission and the decision thereon has become final, the same question is not again open to inquiry in the same case on a motion to reopen based upon a change of condition.

Original proceeding by the Sterling Milk Products Company, employer and the United States Fidelity & Guaranty Company, insurer to review an award of the State Industrial Commission granting compensation to George Underwood, employee.

Award affirmed.

Thos H. Owen and Paul N. Lindsey, both of Oklahoma City, for petitioners.

Murrah & Bohanon and J. I. Gibson, all of Oklahoma City, for respondents.

BUSBY Justice.

In this action the petitioners seek to vacate an order and award of the State Industrial Commission entered on June 5, 1933, in favor of the respondent George Underwood, claimant before the commission. The parties will be referred to as petitioners and claimant, respectively.

On the 12th day of June, 1930, the claimant while performing services for the Sterling Milk Products Company sustained an accidental personal injury to his right arm. The injury was received in an automobile accident which occurred one-half mile west of the city of Shawnee, Okl. On July 16, 1930, "Employer's First Notice of Injury" was filed with the commission. This instrument was executed in behalf of the Sterling Milk Products Company by its president. The nature of the employer's business was described therein as "Wholesale Milk Products." The nature of the work being performed by the claimant was stated in the following excerpt from the instrument: "Man was delivering cottage cheese and truck turned over causing double compound fracture of upper right arm."

Subsequently an agreement as to the facts and the compensation to be paid for the injury was made between the claimant and the petitioners. This agreement was reduced to writing on "form 14." It was filed with the commission on December 2, 1930. On December 5, 1930, a hearing was conducted on this agreement, and, after examining claimant as a witness, the commission entered its order approving the agreement and awarding compensation in the sum of $1,500 in addition to compensation for temporary total disability previously paid. In the agreement on form 14 and the testimony introduced in connection with the approval thereof, neither the nature of employer's business nor the nature of services being rendered by claimant was mentioned.

On March 9, 1933, claimant filed his motion to reopen based upon an alleged change of condition for the worse. Hearings were conducted on this motion at which testimony was introduced. On the 19th day of May, 1933, the commission entered its order determining that the claimant had suffered a change of condition for the worse and awarding additional compensation in the sum of $1,200. Within thirty days thereafter the petitioners commenced this proceeding in this court to vacate that award.

At the hearing before the commission the petitioners offered to prove that at the time of the injury the claimant was employed and was performing services as a solicitor of business and traveling salesman, and therefore was not engaged in one of those hazardous occupations falling within the provisions relating to the Workmen's Compensation Act (Comp. St. 1921, § 7282 et seq., as amended). The objection of the claimant to this evidence was sustained. While there is some evidence in the record concerning the nature of claimant's duties, the commission refused to inquire into the nature of services rendered by claimant on the theory that the matter had been previously adjudicated in the proceeding by which the agreement on form 14 had been approved.

The refusal of the commission to inquire into this question involving its jurisdiction over the subject-matter of the controversy is the basis of the only question presented to this court. Petitioners say that they were entitled to establish that claimant was in fact a traveling salesman. Claimant asserts that the fact that he was not a salesman had been previously adjudicated by the commission adversely to the claim of petitioner, and was not open to inquiry in the proceedings on a motion to reopen based upon an alleged change of condition.

Traveling salesmen do not come within the provisions of the Workmen's Compensation Act by reason of the nature of the service rendered by them, McQuiston v. Sun Co. et al., 134 Okl. 298, 272 P. 1016; Oklahoma Publishing Company v. Molloy et al., 146 Okl. 157, 294 P. 112; Russell Flour & Feed Co. v. Walker, 148 Okl. 164, 298 P. 291, unless additional duties of a hazardous character are performed by them in connection with the services rendered as traveling salesman, Motor Equipment Co. v. Stephens, 145 Okl. 156, 292 P. 63. On the other hand, one who packs and delivers merchandise for a wholesale mercantile establishment falls within the provision of the Workmen's Compensation Act even though he also acts as a traveling salesman. Nash Finch Co. v. Harned, 141 Okl. 187, 284 P. 633.

It is not disputed that the employer in this case was a wholesale mercantile establishment. The disputed question is whether the claimant was a traveling salesman. Although the answer to this question determines the jurisdiction of the State Industrial Commission, the question is one of fact.

This court has on a number of occasions in recent...