63 P.2d 749 | Okla. | 1936
This is an original proceeding in this court brought by the Chicago Pneumatic Tool Company and its insurance carrier, as petitioners, to obtain a review of an award made by the State Industrial Commission in favor of R.E. McGrew. The parties will hereafter be referred to as petitioners and respondent.
The record discloses that the petitioner Chicago Pneumatic Tool Company was manufacturer and distributor of well drilling equipment and had an office and repair shop at Oklahoma City and a storeroom at Wewoka; that the respondent was a combination salesman and service man in the employ of said petitioner and had charge of its storeroom at Wewoka and received a monthly salary of $175 and 1 per cent. on all sales of $3,000 in volume in any month, and that in the performance of his duties he used a company car equipped with a drilling rack and chain hoist; that on February 10, 1935, at the direction and suggestion of his superiors in Oklahoma City, he drove the car to that point for the purpose of doing some billing and having the car appraised with the view to trading it in on a new car; that a satisfactory trade in price was not received, and the respondent suggested that he would probably be able to get a better offer at Seminole, Okla., and was advised by his superiors to have an appraisement made of the car as he returned home that evening and come back the next day and they would make some determination of the matters; that the respondent had his wife with him and they visited a short time in Shawnee and were on their way to Seminole when the respondent ran into the rear of a parked car and was severely injured. The nature and extent of the injury and the manner of its reception is not questioned by the petitioners. The petitioners before the commission challenged the jurisdiction of the commission to make any award, and they are now challenging the jurisdiction of the commission on the ground that the injury did not arise out of and in the course of the employment, and on the further ground that the award was erroneous for the reason that it failed to take into consideration the wages which were paid the respondent subsequent to his injury.
The State Industrial Commission has jurisdiction to award compensation only when the employer is engaged in one of the industries or businesses enumerated in the Compensation Act (Statutes 1931, sec. 13348, et seq.) (World Publishing Co. v. Deloe,
Conceding, without deciding, that the petitioner Chicago Pneumatic Tool Company was engaged in a business or industry enumerated in the Workmen's Compensation Act, and that respondent's primary duties were manual and mechanical and of a hazardous nature, the question remains, Did his injury arise out of and in the course of his employment? As we have said in the cast of Indian Territory Illuminating Oil Co. v. Lewis,
"As used in the Workmen's Compensation Law of this state, the terms 'arising out of' and 'in the course of' are not synonymous, but are conjunctive terms; the words 'out of' referring to the origin and cause of the action, and the words 'in the course of' to the time, place, and circumstances under which it occurred."
An injury "arises out of" the employment when it results from a risk reasonably incident to the employment (Natol v. Booth
Flinn Co.,
Award vacated, with directions.
OSBORN, V. C. J., and BAYLESS, WELCH, CORN, and GIBSON, JJ., concur.