Tulsa Rig, Reel & Mfg. Co. v. Case

• Decision Date: 10 March 1936
• Docket Number: Case Number: 26463
• Citation: 176 Okla. 262,1936 OK 239,55 P.2d 777
• Parties: TULSA RIG, REEL & MFG. CO. et al. v. CASE et al.
• Court: Oklahoma Supreme Court

1936 OK 239

55 P.2d 777

176 Okla. 262

TULSA RIG, REEL & MFG. CO. et al. v. CASE et al.

Case Number: 26463

Supreme Court of Oklahoma

Decided: March 10, 1936

Syllabus

¶0 1. MASTER AND SERVANT - Workmen's Compensation Law - Strict Proof Required That Claimant Is in Class Embraced by Statutes.

Our Workmen's Compensation Law is remedial in its objects and operation, and should receive a liberal construction in favor of those entitled to its benefits, but before one is entitled thereto he should be held to strict proof that he is in a class embraced within the provisions of the law, and nothing can be presumed or inferred in this respect.

2. SAME - Review of Awards by Court - Findings of Fact on Jurisdictional Questions not Conclusive.

This court in reviewing an award of the State Industrial Commission will not accept as conclusive the findings of fact of the State Industrial Commission concerning a jurisdictional question, but on review will weigh the evidence relating thereto and make its own indpendent findings of fact with relation thereto.

3. SAME - Computation of Compensation - Lack of Evidence to Support Award.

Where the injured employee claiming compensation had not worked at the employment in which he was engaged at the time of the injury complained of during substantially the whole of the year immediately preceding the injury, and there was offered no evidence as to the average wages or salary earned by an employee of the same class so working in the same or similar employment in the same or neighboring place, or other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, according to the formula prescribed by section 13355, O. S. 1931, for determining the basis of compensation in such cases, evidence as to the wages or salary received by such injured employee at the time of his injury, standing alone, was incompetent and there was no competent evidence before the commission upon which to base the computation of the compensation awarded.

4. SAME - Vacation of Award Where Material Finding not Supported by Competent Evidence.

Where there is an entire absence of any competent evidence upon which to base a material finding of the State Industrial Commission necessary to support an award of compensation, this court will declare as a matter of law that an award based upon such unsupported material finding is unauthorized and will vacate the same.

Action by the Tulsa Rig, Reel & Manufacturing Company et al. to review an award of the State Industrial Commission in favor of frank Case. Award vacated.

Butler & Brown, for petitioners.

Mac Q. Williamson, Atty. Gen., and Houston W. Reeves, Asst. Atty. Gen., for State Industrial Commission.

Stanley D. Belden, for claimant.

CORN, J.

¶1 This is an original proceeding in this court by the employer and insurance carrier to review an award of the State Industrial Commission against them and in favor of Frank Case, employee, awarding compensation under the Workmen's Compensation Act for accidental personal injuries sustained by said employee.

¶2 The record discloses that the claimant was a common laborer in the employ of the Tulsa Rig, Reel & Manufacturing Company, and that while claimant and a fellow workman were carrying a heavy rig timber, the fellow workman dropped his end of the timber, the fall of which jerked and jarred claimant's right hand, fracturing the fourth metacarpal bone and bruising and straining the muscles and ligaments of that hand. The commission found temporary total disability from January 23, 1934, less the five-day waiting period, up to and including March 31, 1934, and 20 per cent. permanent partial loss of the use of said hand due to said injury.

¶3 Under the petitioners' first proposition they contend that the evidence offered by the claimant in support of his claim is not sufficient to give the Industrial Commission jurisdiction to make the award complained of and under their second proposition they contend the commission erred as a matter of law in awarding the claimant compensation at the rate of $12.31 per week.

¶4 In support of their first proposition the petitioners contend that the record fails to show fact's sufficient to give the commission jurisdiction to hear and determine the cause; that there is no evidence as to the nature or kind of work engaged in by the claimant at the time of alleged accidental injury; that there is no evidence to show whether the employer employed the requisite number of men to give the State Industrial Commission jurisdiction, or to show that the claimant was engaged in a hazardous employment within the terms and meaning of the Workmen's Compensation Act at the time of the alleged injury.

¶5 The fact that the claimant was injured as above set out is not disputed. The record discloses that petitioners paid temporary total disability compensation for a few weeks after the injury was sustained, and on May 16, 1934, filed a motion with the commission to discontinue the payment of such compensation. It also appears that the claimant filed with the commission the ordinary form of claim setting forth the essential details of the case, and it further appears that neither the employer nor the insurance carrier raised any jurisdictional questions in the proceedings before the commission, and that none were at issue.

¶6 On numerous occasions this court has held that before a claimant is entitled to compensation under the Workmen's Compensation Act of the state of Oklahoma, it is necessary that he produce evidence sufficient to bring his employment within the terms of said act.

¶7 In the case of Harris v. Oklahoma Natural Gas Co., 91 Okla. 39, 216 P. 116, in the second paragraph of the syllabus we find the following statement:

"Our Workmen's Compensation Law is remedial in its objects and operation, and should receive a liberal construction in favor of those entitled to its benefits, but before one is entitled thereto he should be held to strict proof that he is in a class embraced within the provisions of the law, and nothing can be presumed or inferred in this respect."

¶8 The above syllabus is quoted with approval by the court in the case of Moore and Gleason v. Taylor, 97 Okla. 193, 223 P. 611.

¶9 In the case of Veazey Drug Co. v. Bruza, 169 Okla. 418, 37 P.2d 294, in the first three paragraphs of the syllabus by the court, we have the following language:

"Section 13349, O. S. 1931, enumerates and designates the classes of industries and business enterprises which come within the meaning and operation of the Workmen's Compensation Law.

"The State Industrial Commission is without jurisdiction to make an award of compensation under the terms of the Workmen's Compensation Law of this state, except in cases wherein it is made to appear that the employer is engaged in one of the classes of industries, plants, factories, lines, occupations, or trades mentioned in said act.

"When there is no dispute as to the facts, it is a question of law whether the employment is included in those enumerated in the Workmen's Compensation Law."

¶10 In the case of McKeever Drilling Co. v. Egbert, 170 Okla. 259, 40 P.2d 32, in the fourth paragraph of the syllabus we have this language:

¶11 "This court in reviewing an award of the State Industrial Commission will not accept as conclusive the findings of fact of the State Industrial Commission concerning a jurisdictional question, but on review will weigh the evidence relating thereto and make its own independent findings of fact with relation thereto."

¶12 In the case of Coca Cola Bottling Co. v. Mowry, 167 Okla. 644, 31 P.2d 562, in the syllabus by the court we find:

"Where there is no evidence to support a material fact in issue before the State Industrial Commission it then becomes a question of law, which, being properly presented, will be determined by this court.

"In all cases appealed from the commission the court reviews the record to the extent of ascertaining whether, under the compensation act (Statutes of 1931, sec. 13348 et seq.) a legal liability is shown. Fidelity & Casualty Co. v. Baker, 162 Okla. 10, 18 P.2d 894."

¶13 In that case we find one F.W. Mowry, as claimant, filed with the State Industrial Commission a claim for compensation against the Coca Cola Bottling Company, respondent, and Royal Indemnity Company, insurance carrier, in which he alleges that he sustained an accidental personal injury arising out of and in the course of his employment with respondent on April 11, 1932, at which time he was aiding in the removal or installing of an ice box at the B. & M. Clothing Store. In moving said box he...