OKLAHOMA TIRE & SUPPLY COMPANY v. SUMMERLIN

OKLAHOMA TIRE & SUPPLY COMPANY v. SUMMERLIN
1955 OK 308
290 P.2d 403
Case Number: 36595
Decided: 11/01/1955
Supreme Court of Oklahoma

OKLAHOMA TIRE & SUPPLY COMPANY, PETITIONER,
v.
W.E. SUMMERLIN AND STATE INDUSTRIAL COMMISSION, RESPONDENTS.

Syllabus

¶0 1. The presumption created in favor of employees by the provisions of

2. Record examined and held to disclose that the employment of the employee was with a retail store not covered by the Workmen's Compensation Law.

Petition for review from the State Industrial Commission.

[290 P.2d 403]

Original proceeding brought by Oklahoma Tire & Supply Company, Petitioner, to review an award of the State Industrial Commission made to W.E. Summerlin, Claimant, Award vacated with directions.

Samuel H. Minsky, Tulsa, for petitioner.

H. Tom Kight, Jr., Claremore, Mac Q. Williamson, Atty. Gen., for respondents.

BLACKBIRD, J.

¶1 On the 23rd day of February, 1954, W.E. Summerlin, hereinafter called claimant, filed his first notice of injury and claim for compensation, stating that he sustained two separate injuries to his back, one on September 13, 1953, and one on December 9, 1953, while driving a delivery truck for petitioner, Oklahoma Tire & Supply Company. The State Industrial Commission entered an award in part as follows:

"That all jurisdictional questions have been established by prior order of the Trial Commissioner of May 17, 1954, which order fixed the date of claimant's injury as December 9, 1953, and claimant's rate of compensation at $28.00 per week; and found that claimant had lost no compensable time by reason of said injury.

"Said order being final as to all the above matters, the matter now comes on for determination of claimant's permanent partial disability only.

"That claimant has sustained 10 per cent permanent partial disability to his body as a whole, by reason of his said back injury sustained on December 9, 1953, for which he is entitled to compensation for 50 weeks at $28.00 per week, or the total sum of $1400.00, of which 8 weeks have accrued to June 23, 1954, and shall be paid in a lump sum of $224.00, balance of award at $28.00 per week from June 23, 1954."

¶2 [290 P.2d 404] By reference to said order it will be seen that there was a former order which eliminated the claimed accident of September 13, 1953, as a contributing cause to the disability sustained by claimant.

¶3 This proceeding is brought by petitioner to review the award. The evidence of claimant consisted of his own testimony insofar as it disclosed the cause of the accidental injury. He stated he was driving a delivery truck for Oklahoma Tire & Supply Company from one of the stores to another store and from the warehouse to one of the retail stores.

¶4 The first proposition is that the State Industrial Commission erred in entering the award for the reason the record discloses that claimant's employment was not in one of the lines or industries covered by the Workmen's Compensation Law.

¶5 Claimant argues that the presumption under

¶6 In Enid Cemetery Ass'n v. Grace, 177 Okl. 320,

"The parties concede that the question of jurisdiction in this case must stand or fall on respondent's own testimony concerning his employment. This testimony establishes the fact that his employer was a cemetery association conducting and operating a cemetery and burial ground, and that respondent was employed as a manual laborer in connection therewith. This evidence definitely established the fact that respondent's employer was not engaged in any of the enumerated businesses, trades, or occupations mentioned in section 13349, O.S. 1931, and that his employment was not hazardous as defined by section 13350, O.S. 1931. Thus the State Industrial Commission had before it positive testimony which negatived the presumption which might have been invoked under section 13361, O.S. 1931, and which testimony renders inapplicable the rule relative to presumption as announced by us in Dillon v. Dillman, 133 Okl. 273, 272 P. 373; Maryland Casualty Co. v. State Industrial Comm., 141 Okl. 202, 284 P. 644; Bishop v. Wilson, 147 Okl. 224, 296 P. 438 and Petroleum Chemical Corp. v. State Industrial Comm., 154 Okl. 67,

¶7 This case was followed in Klein v. State Industrial Commission, 181 Okl. 395,

¶8 Claimant cites in support of his proposition Nu Way Frosted Food Market v. State Industrial Commission, 193 Okl. 493,

¶9 [290 P.2d 405] Since the first proposition presented by petitioner is conclusive of the issues presented, it is unnecessary to determine the remaining issues.

¶10 The award of the State Industrial Commission is vacated and the cause remanded to the State Industrial Commission with directions to dismiss the claim.

¶11 JOHNSON, C.J., WILLIAMS, V.C.J., and WELCH, HALLEY and HUNT, JJ., concur.

¶12 CORN, J., dissents.