Terminal Oil Mill Co. v. Wilson

• Decision Date: 26 September 1933
• Docket Number: Case Number: 24046
• Citation: 1933 OK 502,165 Okla. 103,25 P.2d 294
• Parties: TERMINAL OIL MILL CO. v. WILSON
• Court: Oklahoma Supreme Court

1933 OK 502

25 P.2d 294

165 Okla. 103

TERMINAL OIL MILL CO. v. WILSON

Case Number: 24046

Supreme Court of Oklahoma

Decided: September 26, 1933

Syllabus

¶0 1. Master and Servant--Workmen's Compensation--Sole Employment of Traveling Salesman not Covered by Law.

The provisions of the Workmen's Compensation Act apply only to such employees as are engaged in manual or mechanical labor of a hazardous nature, and do not extend to one whose sole employment is that of traveling salesman.

2. Same--Injuries to Traveling Salesman Who Engages in Manual Labor for Same Employer During Another Season Held not Compensable.

That claimant injured while engaged solely as a traveling salesman might be required to or does engage in manual or mechanical labor for the same employer at another season and during another period of his employment, will not warrant the basing of an award upon an injury sustained by him while so engaged as a traveling salesman.

Original proceedings in the Supreme Court by the Terminal Oil Mill Company et al. to review an award of the State Industrial Commission granting H. O. Wilson compensation for accidental injury. Award vacated.

Thurman, Bowman & Thurman, for petitioners.

Murrah & Bohanon, J.

I. Gibson, J. Berry King, Atty. Gen., and Robt. D. Crowe, Asst. Atty. Gen., for respondents.

OPINION: PER CURIAM.

¶1 This is an original proceeding to review an award of the State Industrial Commission granting H. O. Wilson the sum of $ 813 for 45 weeks and one day compensation at the rate of $ 18 per week, the same being accumulated compensation from the 23rd day of September, 1931, to the 9th day of August, 1932, less the five-day waiting period, and further granting an order to the insurance carrier continuing payment of compensation at the rate of $ 18 per week, during the continuance of claimant's temporary total disability on account of said accidental injury.

¶2 The facts are uncontested that the claimant was in the employ of the Terminal Oil Mill Company, petitioner herein, and that he was injured while in the employ of said company and while traveling in his own automobile on the 23rd day of September, 1931, and while engaged in the occupation of buying cotton seed for the petitioner.

¶3 The accident causing the injury was a collision on a highway with another car and claimant's car between the towns of Willow and Brinkman, Okla.

¶4 The facts contested and the testimony in dispute between the parties relate to whether, in addition to the duties of purchasing cotton seed, the claimant was employed to do and did the work about the mill of the petitioner when he was not employed as a salesman or agent purchasing cotton seed.

¶5 It is the position of the claimant that he comes within the rule laid down in the case of Pawnee Ice Cream Co. v. Price, 164 Okla. 120, 23 P.2d 168, in which Justice Welch states the rule as follows:

"While in this case the claimant, Mamie Fried, devoted most of her time to manual or mechanical labor, and in the instant case the claimant, Everett J. Price, devoted most of his time to clerical work, we think the true rule is that if the employment requires the employee to devote any of his time to manual or mechanical work or labor, and in pursuance of such employment he does do so, he is then employed in 'hazardous employment' as defined in section 7284, supra, notwithstanding the fact that his employment requires that he devote the major portion of his time to clerical work, and notwithstanding the fact that he is actually employed at clerical work at the time of the injury."

¶6 And in the case of Oklahoma-Arkansas Telephone Co. v. Fries, 128 Okla. 295, 262 P. 1062. One of the first cases considered by this court involving the question of this nature was the case of McQuiston v. Sun Co., 134 Okla. 298, 272 P. 1016. In that case the facts were undisputed that McQuiston, the claimant, was a traveling salesman; that he went from town to town for the purpose of selling greases, oil, etc., and in his work it was necessary for him to visit mills and establishments operating machinery. Mr. Justice Riley for the court found against the claimant in that case, and the syllabus is as follows:

"The provisions of the Workmen's Compensation Act apply only to such employees as are engaged in manual or mechanical labor of a hazardous nature, and do not extend to one whose sole employment is that of a traveling salesman."

¶7 The fact that during his sales it was necessary to be in and around machinery was held insufficient to constitute the basis of an award. Another case is Oklahoma Publishing Co. v. Molloy, 146 Okla. 157, 294 P. 112. In that case the claimant's work consisted of soliciting orders and subscriptions for the Daily Oklahoman and Oklahoma City Times, newspapers published by the employer, and in delivering sample copies of the papers as he made solicitations...