CLOER v. K & H CONSTRUCTION COMPANY

CLOER v. K & H CONSTRUCTION COMPANY
1955 OK 73
281 P.2d 421
Case Number: 36552
Decided: 03/22/1955
Supreme Court of Oklahoma

W.S. CLOER, PETITIONER,

v.

K & H CONSTRUCTION COMPANY, GENERAL ACCIDENT FIRE AND LIFE INSURANCE COMPANY, AND THE STATE INDUSTRIAL COMMISSION OF THE STATE OF OKLAHOMA, RESPONDENTS.

Syllabus

¶0 1. The question of whether an injury arose out of and in the course of employment is one of fact to be determined by the Industrial Commission under the circumstances of each particular case, and where there is any testimony reasonably tending to support its finding, it will not be disturbed on an application to vacate an order denying an award.

2. Record examined, and held, that there is competent evidence reasonably tending to support the finding of the State Industrial Commission that the accidental injury did not arise out of and in the course of the employment.

Petition for review from the State Industrial Commission.

[281 P.2d 421]

Original Proceeding by W.S. Cloer, Claimant, to Review an Order Denying an Award of the State Industrial Commission in A Proceeding Against K & H Construction Company and its Insurance Carrier, General Accident Fire and Life Insurance Company, Respondents; Order Sustained.

Joe M.T. Wilson and O.B. Martin, Oklahoma City, for petitioner.

Pierce, Mock & Duncan, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.

DAVISON, J.

¶1 W.S. Cloer, hereinafter called claimant, filed his first notice of injury and claim [281 P.2d 422] for compensation stating that on October 27, 1953, he sustained an accidental injury arising out of and in the course of his employment with respondent, K & H Construction Company, resulting in the loss of his thumb. The trial commissioner entered an award for the loss of the thumb but on appeal to the Commission en banc the award was vacated. This proceeding is brought to review the order denying the award.

¶2 The single issue is that the State Industrial Commission erred in finding that the accidental injury did not arise out of and in the course of the employment. Claimant states that the accident occurred October 27, 1953, when a truck owned by the Leonhardt Lumber Company became stalled in the back yard of a dwelling that was being constructed by the respondent. Claimant was a cabinet maker and did all the cabinet work in the dwellings constructed by the construction company and was engaged in doing the cabinet work in this particular dwelling and was present on the premises with one other employee. He stated that this employee requested him to help move the truck from its stalled position caused by a puddle of water from a recent rain. While assisting this employee in placing rocks and bricks under the back wheel of the truck, the truck backed up, caught his thumb, causing the loss thereof.

¶3 We think the order must be sustained under the rule announced in Standish Pipe Line Co. v. Johnson, 197 Okl. 238,

"The question of whether an injury arose out of and in the course of employment is one of fact to be determined by the Industrial Commission under the circumstances of each particular case, and where there is any testimony reasonably tending to support its finding, it will not be disturbed on an application to vacate the award."

¶4 In discussing the argument that the court should review the evidence independently it is stated in the body of the above cited opinion, as follows:

"The true rule was expressed by this court in the Oklahoma Gas & Electric Co. v. Santino, 158 Okl. 70,

"`The question of whether an injury arose out of and in the course of employment is one of fact to be determined by the Industrial Commission under the circumstances of each particular case, and, where there is any testimony reasonably tending to support its finding, it will not be disturbed on application to vacate the award.'"

¶5 The evidence in the case under consideration is in conflict. Claimant testified that he was alone with the other employee and there was no other person in command and he was therefore authorized to help with the stalled truck. Both partners in the construction company testified that it was not the duty of claimant to assist in attempting to remove the truck from the mud hole. Under such circumstances there is competent evidence reasonably tending to support the finding that the accidental injury did not arise out of and in the course of the employment. The commission evidently was of the opinion that claimant was a volunteer going to the aid of one stuck in the mud. The finding of the commission was justified under the holding in the case of Marby Construction Co. v. Merritt, 200 Okl. 560,

¶6 Claimant cites Denton v. Young, 203 Okl. 688,

¶7 [281 P.2d 423] There is competent evidence reasonably tending to support the order denying the award.

¶8 Order sustained.

¶9 JOHNSON, C.J., WILLIAMS, V.C.J., and WELCH, HALLEY and JACKSON, JJ., concur.

¶10 CORN, J., dissenting.