CITY OF GRANDFIELD v. DAVIS

CITY OF GRANDFIELD v. DAVIS
1941 OK 216
114 P.2d 488
189 Okla. 156
Case Number: 30234
Decided: 06/17/1941
Supreme Court of Oklahoma

CITY OF GRANDFIELD et al.
v.
DAVIS et al.

Syllabus

¶0 WORKMEN'S COMPENSATION -- Employment in cleaning out sewer for city not "hazardous" within terms of law.
An employee who is injured while cleaning out a sewer for a city is not within the terms of the Workmen's Compensation Law, section 13348, O. S. 1931, et seq., as amended, 85 Okla. St. Ann. sec. 1, et seq., and an order of the State Industrial Commission granting him an award will be vacated as a matter of law.

Original proceeding in the Supreme Court by the City of Grandfield to review an award of the State Industrial Commission in favor of Benjamin Ed-ward Davis. Award vacated.

Preston Peden, of Oklahoma City, for petitioners.
John B. Ogden and Wilson Wallace, both of Ardmore, and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 In this original proceeding the city of Grandfield and the State Insurance Fund, its insurance carrier, seek to review an award in favor of Benjamin Edward Davis, an employee -of the city of Grandfield.

¶2 The parties will be referred to as petitioners and respondent, as they appear in this court.

¶3 On the 2nd day of December, 1940, there was filed employee's first notice of injury and claim for compensation, in which it is stated that on November 5, 1940, at 2 o'clock in the afternoon, respondent was injured when a chain he was holding wrapped around a pipe slipped and the pipe fell on his fingers crushing his fingers against the top of a cement cover to one of the septic tanks of the sewer system of the city of Grandfield. The facts substantially reveal that the respondent was a day laborer employed only occasionally by the petitioner, the city of Grandfield; that he had been working for approximately two and one-half days under the direction of a city employee named Newell assisting said Newell in cleaning out the septic tanks or disposal tanks in the sewage system of said city of Grandfield; that prior to the two and one-half days' work he was hired occasionally to cut the weeds in the park and along the sides of the streets in the said city of Grandfield. For the purpose of cleaning the tanks the two employees were using a pump which would force the sewage into a nearby creek. While the respondent was changing a pipe from one of these outlets to another, he sustained the injury of which complaint is made.

¶4 We are of the opinion, and hold, that the facts place this case directly under the cases of Payton v. City of Anadarko, 179 Okla. 68, 64 P.2d 878, and City of Muskogee v. State Industrial Commission, 150 Okla. 94, 300 P. 627. It is urged here, as it was urged in both those cases, that the respondent was engaged in construction work as defined by section 13349, O. S. 1931, as amended, 85 Okla. St. Ann. § 2. We can see no difference between the cleaning of a sewer by unstopping a manhole or outlet as occurred in those cases and in cleaning the same in the manner used in the case at bar.

¶5 It appearing, therefore, that the employment of the respondent was not hazardous within the terms and definition of the Workmen's Compensation Law and the order allowing the award was not justified, the same is hereby vacated, with directions to the State Industrial Commission to dismiss the claim.

¶6 WELCH, C. J., and RILEY, OSBORN, GIBSON, and DAVISON, JJ, concur.