Sw. Grocery Co. v. State Indus. Comm'n

• Decision Date: 21 March 1922
• Docket Number: Case Number: 12671
• Citation: 205 P. 929,1922 OK 100,85 Okla. 248
• Parties: SOUTHWESTERN GROCERY CO. v. STATE INDUSTRIAL COMMISSION et al.
• Court: Oklahoma Supreme Court

1922 OK 100

205 P. 929

85 Okla. 248

SOUTHWESTERN GROCERY CO. v. STATE INDUSTRIAL COMMISSION et al.

Case Number: 12671

Supreme Court of Oklahoma

Decided: March 21, 1922

Syllabus

¶0 1.Master and Servant -- Workmen's Compensation--Statutes--Repeal.

Section 1 of chapter 14, Session Laws of 1919, p. 14, repealed section 1, article 1 of chapter 246, Session Laws of 1915, p. 471, including the provision: "If there be or arise any hazardous occupation or work other than those hereinabove enumerated, it shall come under this act."

2. Same--Claims--Presumptions.

In a proceeding for the enforcement of a claim for compensation under the Workmen's Compensation Act, the presumption prevails that the claim comes within the provisions of the act, in the absence of substantial evidence to the contrary.

3.Same--Departments of Employer's Business--Scope of Act.

The Workmen's Compensation Act recognizes the fact that the employer may conduct different departments of business, some of which fall within the act, and some of which do not.

4. Same--"Employer"--Definition.

An employer, under the provisions of the Workmen's Compensation Act, is one who employs more than two workmen,.

Original action by the Southwestern Grocery Company to review order of State Industrial Commission awarding workmen's compensation to Ralph Radecke.Reversed and remanded.

Bush, Moss & Owen, for petitioner.

C. R. Thurlwell, for respondent.

PITCHFORD, V. C. J.

¶1 This is an appeal from the order of the State Industrial Commission, awarding to the claimant, Ralph Radecke, certain compensation, and ordering the petitioner, the Southwestern Grocery Company, to pay all the medical expenses growing out of an accident received in July, 1921, by the claimant while in the employment of the petitioner.There is no controversy over the facts involved.The petitioner owned and operated a grocery and meat market in the residential district of the city of Tulsa, Okla.The meat market, or butcher shop, was in the rear of the store and in charge of a butcher.The claimant, Radecke, was employed to assist the butcher after school hours and on Saturdays, his duties being confined to dressing chickens and cleaning up the meat market.In the meat department there were an electric sausage grinder and a hand-power meat slicer.At the time of the injury, the claimant was in a rear room, adjoining the meat market, engaged in dressing chickens, using in connection therewith a knife seven or eight inches long.There was no kind of machinery in the room where the claimant was working.Claimant, at the time of the injury, was cutting a chicken through the back bone, and the knife slipped and struck him in the right groin.He was taken to the hospital where he remained for about 15 days, and was unable to resume his work for a period Of seventeen weeks and three days.

¶2 It is contended by the petitioner, the grocery company, that, under the Workmen's Compensation Act, and the amendments thereto, there is no provision including the kind of employment engaged in by claimant at the time of the injury; that a retail grocery store does not come within the provisions of the act.On the other hand it is contended by the respondent that the fact that there was a sausage grinder in the store operated by electricity, would bring the business, including both the meat market and the grocery store proper, under the head of "Workshop where machinery is used."

¶3We have examined many authorities, but have been unable to find where this identical question has been passed upon by any of the courts of last resort; however, there appears to be running through the great majority of the decisions, construing the Workmen's Compensation Act, a sympathetic appreciation of the humane considerations, as well as a desire to do justice to employer and employee alike, on the part of the lawmakers in enacting this law.We are thoroughly in accord with the purposes of the act, and inclined to follow that line of decisions holding that the act and all parts thereof should be liberally construed, in order that the legislative intent should be effectuated and safeguarded.

¶4Section 11 of chapter 246, Session Laws of 1915, p. 471, provides that, in any proceeding for the enforcement of a claim for compensation under the Workmen's Compensation Act, it shall be presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of the act.While section 10 of chapter 14, Session Laws of 1919, p. 14, provides that the decision of the commission shall be final as to all considerations of fact, it therefore follows that the sole question for our consideration is, Does a retail grocery store come within the provisions of the act, by reason of having in connection therewith a meat market wherein is installed a sausage grinder operated by electricity?

¶5The instant case is governed by the 1919 act, which is found in Session Laws of 1919, p. 14.Section 2 of this act provides that compensation shall be payable for injuries sustained by employees engaged in the hazardous employments therein enumerated, and included in such employments are "workshops where machinery is used."

¶6 Hazardous employment is defined by the act as "All manual or mechanical work or labor connected with or incident to one of the industries, plants, factories, lines, occupations or trades mentioned in section 2 of the act."

¶7 It is contended, however, on the part of the respondents that, regardless of whether or not the business conducted by the petitioner came under the term of "workshop where machinery is used," the grocery company would be liable under section 2 of article 1 of chapter 246 of the act of 1915, supra, which after enumerating the various hazardous employment covered by the act, provides:

"If there be or arise any hazardous occupation or work other than those hereinabove enumerated, it shall come under this act."

¶8We are of the opinion, and so hold, that this provision of the act just quoted was repealed by section 1 of the act of 1919, supra, which provides:

"That section 2 of article 1 of chapter 246, Session Laws of 1915, be and the same is hereby amended to read as follows:

¶9Section 2.Compensation provided for in this act shall be payable for injuries sustained by employes engaged in the following hazardous employments, to wit:

"Factories, cotton gins, mills and workshops where machinery is used; printing, electrotyping, photoengraving and stereotyping plants where machinery is used; foundries, blast furnaces, mines, wells gas works, gasoline plants, oil refineries and allied plants and works, water works, reduction works, elevators, dredges, smelters, powder works, glass factories, laundries operated by power, creameries operated by power quarries, construction and engineering works, construction and operation of pipe lines, tanneries, paper mills, transfer and storage, construction of public roads, wholesale mercantile establishments, employees employed exclusively as salesmen or clerical workers excepted; operation and repair of elevators in office buildings: logging, lumbering, street and interurban railroads not engaged in interstate commerce, buildings being constructed, repaired or demolished, farm buildings and farm improvements excepted; telegraph, telephone, electric light or power plants or lines; steam heating or power plants and railroads not engaged in interstate commerce."

¶10Section 2, so amended, omitted entirely the foregoing provision of 1915 act.Section 1 of the act of 1919supersededsection 2 of the act of 1915, and now controls.Even if section 2 of the act of 1915 had not been amended, this provision could have no bearing on the instant case.

¶11 In Board of Commissioners of Kingfisher County v. Grimes et al., 75 Okla. 219, 182 P. 897.Owen, C. J., in delivering the opinion of the court, says:

"This section of the act also provides if there be or arise any hazardous occupation other than those enumerated, it shall come

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