MAYO HOTEL v. BARNEY

MAYO HOTEL v. BARNEY
1937 OK 729
74 P.2d 621
181 Okla. 430
Case Number: 27952
Decided: 12/21/1937
Supreme Court of Oklahoma

MAYO HOTEL et al.
v.
BARNEY et al.

Syllabus

¶0 WORKMEN'S COMPENSATION -- Employee in "Workshop" Protected Though Injured When Work Being Done not on Immediate Premises.
An employee in a "workshop" within the meaning of Workmen's Compensation Act when injured in performance of duties connected with or incident to such employment is within protection of Compensation Act whether or not work being done is on immediate premises. 85 Okl.St.Ann. § 3, section 13350, O.S.1931.

Original proceeding by the Mayo Hotel, employer, and another, to review an award of the State Industrial Commission in favor of C. A. Barney, claimant. Award affirmed.

Pierce & Rucker and Fred M. Mock, all of Oklahoma City, for petitioners.
Hamilton & Clendinning, of Tulsa, Mac Q. Williamson, Atty. Gen., and Houston W. Reeves, Asst. Atty. Gen., for respondents.

RILEY, Justice.

¶1 This is an original proceeding to review an award of the State Industrial Commission, and but one question is involved, which is, whether the State Industrial Commission had jurisdiction. This question is dependent upon whether the Workmen's Compensation Law, O.S.1931, § 13348 et seq., 85 Okl.St.Ann. § 1 et seq., is applicable to the character of work done by claimant, Barney, at the time he was injured. It is readily apparent that the employer, the Mayo Hotel, is not engaged in a business, that of operating a hotel, which, eo nomine, falls into the classification of being hazardous as enumerated by the statute, section 13349, O.S.1931, 85 Okl.St.Ann. § 2. Central Surety & Ins. Corp. et al. v. State Indus. Comm., Okl.Sup., 69 P.2d 1036. But by virtue of the same section, an employee in a "workshop" within the meaning of the Workmen's Compensation Act, when engaged in performance of duties connected with or incident to such employment, is within the protection of the Compensation Act, for compensation is payable for injuries sustained by employees engaged "in the following hazardous employments * * * work shops where machinery is used * * * electric light or power plants or lines; steam heating or power plants."

¶2 Section 13350, O.S.1931, 85 Okl.St.Ann. § 3, defines "workshop." It means: "'Workshop' means any premises, yard, plant, room, or place wherein power-driven machinery is employed and manual or mechanical labor is exercised by way of trade for gain or otherwise or incidental to the process of making, altering, repairing, printing, or ornamenting, cleaning, finishing, or adopting for sale or otherwise, any article, or part of article, machine or thing over which premises, room or place the employer of the person working therein has the right of access or control."

¶3 The said section also provides that where several classes or kinds of work are performed "the provisions of this Act shall apply only to such employees as are engaged in manual or mechanical labor of a hazardous nature."

¶4 Despite what was said in the Central Surety Case, supra, by way of reliance upon Scottish and English authority, we think and hold that a workshop may be maintained and conducted by a hotel business as a part of service rendered by it for "trade or gain" or at least "by way of trade for gain or otherwise" as contemplated by the statute, subdivision 11, § 13350, 85 Okl.St.Ann. § 3, subd. 11, supra. Sunshine Food Stores et al. v. Moorehead et al., 153 Okl. 301, 5 P.2d 1066.

¶5 In that cause a retail meat market was not under the statute, eo nomine, hazardous, but when a power-driven meat grinder was used therein it became a workshop as defined by statute, and whether or not employment was hazardous became a question of fact and not merely subject to statutory designation of business engaged in by the employer. Gooldy et al. v. Lawson et al., 155 Okl. 259, 9 P.2d 22.

¶6 A line of demarcation is noted in the cases of City of Duncan v. Ray et al., 164 Okl. 205, 23 P.2d 694, where a city traffic officer was not covered by the act, and Veazey Drug Co. v. Bruza, 169 Okl. 418, 419, 37 P.2d 294, concerning a deliveryman, and Rorabaugh-Brown Dry Goods Co. v. Mathews, 162 Okl. 283, 20 P.2d 141, concerning a "hand lift elevator" in a retail department store which did not transform it into a workshop. See, also, Spivey & McGill et al. v. Nixon et al., 163 Okl. 278, 21 P.2d 1049.

¶7 The claimant, Barney, was employed by the Mayo Hotel Company for six years prior to May 4, 1936, when, while removing a ceiling electric fan in the ballroom, he fell from a ladder, the support giving away, and received serious injuries. Barney was employed in the engineer's department of the hotel where ten men did similar work and three the identical work of claimant. This work was electrical, such as installing and wiring motors and fans. The engineer's department was equipped with three boilers, a hot water pump, work benches, circulating fans and a refrigerator room. In this "room or place" Barney repaired pumps and boilers in addition to electrical labor such as he performed on motors of elevators. This was "bench work." His duties called upon him to do "wiring" over the entire hotel such as he was engaged in when injured. This labor was in connection with the duties performed by Barney on the bench in the engineer's room. On cross-examination claimant testified he was a general utility man.

¶8 We conclude that the State Industrial Commission was justified by the evidence in its view that the Mayo Hotel operated a workshop within the meaning of the statute; that Barney was employed there and that the accidental injury arose out of and in the course of his employment. Award affirmed.