Winona Oil Co. v. Smithson

KBNNAMER, J. This action was commenced in this court by Winona Oil Company and Consolidated Underwriters, as petitioners, against John Clark Smithson and State Industrial Commission, respondents, to reverse and vacate an award made on June TO, 1921, by the State Industrial Commission in favor of John Clark Smithson awarding to the respondent, John Clark Smithson, $38 per week for a period of 100 weeks fur the loss -of the use of his left eye. The essential facts as disclosed by the record are: That John Clark Smithson, on the 17th day of May, 1920, while employed by tbe Winona Oil Company, went to tbe National Supply Company store in tbe city of Wynona, Osage county, Okla., to get some tools for tbe oil company, and after getting the tools started out -of the store to his ear and stepped off a platform about' two and one-lialf feet high. When the respondent, Smithson, stepped from the platform to the ground, the tools -being in bis arms, he received a severe jar, which caused rupture of blood vessel and hemorrhage in vitreous of left eye. The evidence of the attending physicians and of tbe respondent, -Smithson, shows that the respondent, Smithson, for all practical purposes lost tbe use of his left eye, and tbe State Industrial Commission, upon tbe evidence submitted, under section 3 of the act of the Legislature of 1919, c. .14, Session Laws 1919, pages 18 and 19, awarded the respondent, Smithson, compensation for permanent partial disability for the loss of an eye. Tbe act provides for 50 per centum of the average weekly wages as compensation; the maximum compensation under section 5 of tbe act being $18 per week. The respondent, Smithson, in this cause was receiving on the date of his injury a salary of $250 per month, or weekly wages of $62.50. The commission awarded him the maximum sum of $18 per week for 100 weeks. The petitioners rely upon two propositions for the reversal of the award: First, that the injury sustained is not an accidental injury within the meaning of section 1, art.% 2, of tbe Workman’s Compensation Act of 1916, as amended by the act of 1919. Second, that, if the injury is an accidental injury within the -meaning of the Workmen’s Compensation Law, the respondent, Smithson, should not he compensated, for the reason no disability resulted therefrom. 'Counsel for the petitioners have with a great deal of ability and earnestness presented many authorities which appear to support the contentions of the petitioners. Rut u-pon an examination of the authorities cited by counsel for the petitioners, it is apparent that these authorities are construing statutes not identical with the statute under consideration. No authority by this court has been cited by counsel for the petitioners construing! the Workmen’s Compensation Law of Oklahoma. Counsel for the petitioners, in support of their contention that the injury compensated in this cause was not an accidental injury, rely upon section 4 of the act of the Legislature of 1939, c. 14, amending section 1 of article 2 of chapter 246, Session Laws of 1935. which in part reads as follows: “Every employer subject to the provisions of this act shall pay, or provide as required by this act compensation according to the schedules of this article for the disability of his employe resulting from an accidental personal injury sustained by tbe employe arising out of and in tbe course of bis employment, without regard to fan'll as a- *228 cause of such injury, except where the injury is occasioned by the willful intention of the injured employe to bring about injury to himself or to another, or where the injury results directly from tlie willful failure of the injured employe to use a guard or protection against accident furnished for his use pursuant to any statute or by order iof the State Labor Commissioner or reMil'R directly from (the intoxication of i ho injured employe while on duty. * * *” Tu is insisted that the phrase in sain section of the act, supra, “resulting from an accidental personal injury sustained,” is to be construed the same as (he English Compensation Act, which uses (he term, “by accident,” and they cite (he case of Fenton v. Thorley & Company, App. Cas. 443, 72 L. J. K. 787, 89 Law Times Report, 314 Times Law Report, 684, 5 W. C. C. 1, where the rule is announced as follows: “* * * rpftg expression o-f ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap, or an untoward event which is not expected or designed.” We have no fault to find with the rule defining an accident, but, applying this rule (o the case at bar, we are of the. opinion that the injury received 'by the respondent, Smithson, was accidental. We agree with counsel for petitioners that the act of the respondent, Smithson, in stepping off of the porch was not an accident, for the reason he admits that he purposely walked out of the supply store and stepped off of the porch in front of the store, but tlio unlooked-for mishap or untoward event which was not expected or designed was the severe jar which ruptured a blood wes-setl in tlie respondent’s eye. Unquestionably the violent jar which ruptured the blood vessel in the respondent’s eye was an un-looked-for and unexpected event. It is obvious that, if such an event or result had been expected, the respondent would not have stepped off of the porch, or would have unloaded the tools and gas fittings which he ivas carrying before he stepped from the porch, in order to have prevented the rupturing of a blood vessel in bis eye. The rule as to. wliat constitutes an accident is found in Corpus Juris, page 64, ■ as follows : “The word ‘accident,’ as used in a compensation act requiring the injury compensated for to be by ‘accident,’ is held to be employed in its ordinary sense as meaning an unlooked-for and untoward event which is not expected or designed; and the tejpn ‘accident’ means something unusual, unexpected. and undesigned. * * *” See Stasmos v. Industrial Commission et al., 80 Okla. 221, 195 Pac. 762 ; Mary E. Sullivan v. Modern Brotherhood of America, 167 Mich. 524, 133 N. W. 486, 42 L. R. A. (N. S.) 140. The term "accidental injury,” as used in the act, must not lie given a narrow moaning, but, according to the great weight of English and American authorities, the term is to receive a broad and liberal construction with -a 'view of compensating injured employes where the injury results through some accidental means, was unexpected and undesigned, or may be the result of mere mischance or of miscalculation as to the effect of voluntairy action. Stasmos v. State Industrial Commission, 80 Okla. 221, 195 Pac. 762 ; Henley v. Okla. Union Ry. Co. et al., 81 Okla. 224, 197 Pac. 488 ; Robbins v. The Original Gas Engine Company (Mich.) 157 N. W. 437 ; Vennen v. New Dells Lumber Company, 161 Wis. 370, 154 N. W. 640, L. R. A. 1916A, 273 ; 1 Schneider's Workmen’s Compensation Law, 135. We are clearly of the opinion that the injury received by the respondent in this cause was an accidental injury within the meaning of the act. It is next contended by counsel for the petitioners that the respondent is not entitled to compensation for his injury, for the reason that only compensation may be paid under the Compensation Law of this state for a disability resulting from an accidental personal injury; that it wm- the purpose of the Workmen’s Compensation Act to provide compensation because of incapacity for work. We concur in the contention of counsel, that it is the purpose of the Compensation Law to pay tlie injured employe for disability and incapacity to work. The act, in section 9, Session Laws 1919, page 18, specifically provides for permanent partial disability as follows: “In ease of disability partial in character but permanent in quality the compensation shall be 50 per centum of the average weekly wages, and shall 'be paid to tlie employe for the period named in the schedule as follows. * * * Eye: For the loss of an eye, one hundred weeks. * * *” It is obvious under the plain language of this section of the law that the loss of an eye constitutes a disability partial in character, but permanent in quality, and it provides compensation for such a disability should bo 50 per centum of the average weekly wages, and that such compensation *229 is not dependent upon the actual incapacity of the injured employe to continue to discharge his duties in the line of his employment at the time of his injury. The fact that his employer continues his employment, Qr that he secures employment from some other person at an increased or decreased wage, in no way affects his right lo the compensation specifically provided for in the act. If the injured employe receives such an injury as is specifically provided for in the act,' such as the loss of a hand, toe, arm, foot, finger, leg, etc., the same constitutes a' permanent partial disability, for the simple reason that the act specifically so provides, and the injured employe is entitled to the compensation as provided in the schedule of the act. The rule may be found in vol. 2, Schneider’s Workmen’s Compensation Law, sec. 402, to be as follows: “If the employe’s physical efficiency has been substantially impaired, the fact that be is employed at the same work, or at the same or higher wages, will not as a general rule disentitle him to compensation, unless it is expressly so provided in the act under which the claim is made. “Some impairment of efficiency is, however, essential, unless the injury comes within the disfigurement provision of the act. "Under the Kansas Act, the court, in holding that it was immaterial whether an injured employe was making as much or more after the injury in some other line of employment as ',he was making iptrioir to the injury, said: ‘It is settled that, when one Is totally or partially incapacitated, for hard manual labor, he is not to be -denied compensation because he obtains employment even at better wages at a task 'which Ire is physically able to perform.’ ” Hercules Powder Company v. Morris County Court of Common Pleas et al. (N. J.) 107 Atl. 433 ; Mercury Aviation Company v. Industrial Acc. Commission of California et al. (Cal.) 199 Pac. 508. We are of tbe opinion that it was the Intention of the Legislature to treat such physical impairment as the loss of a hand, arm, leg, 'Or eye as a disability partial in character 'but permanent in quality, and compensation must be paid where the impairment resulted from an accidental personal injury sustained by the employe arising out of and in the course of his employment irrespective of his subsequent ability to earn compensation in his present occupation or in other employment. The primary, purpose of all workmen’s compensation laws is to provide compensation for injured employes for injuries accidentally received in the course of their employment. The compensation provided for in such laws is intended to operate and fill the place of an -accident insurance policy. The great army of employes is indispensable in carrying on the great industrial oper•ation of the nation in the production of the necessities of life. In order to dispense with a great volume of expensive litigation, workmen’s compensation laws have been substituted for the ordinary common-law action for da-m|ages for injured employes ; the chief purpose of all workmen's compensation laws being to compensate injured employes speedily and in an inexpensive manner. Then • the necessary cost of such -compensation is to he charged as a part of the cost of production. Therefore, technical rules and fine spun theories have no place in the construction of such laws. The award of the Industrial Commission is affirmed. HARRISON. C. J., and KANE, JOHNSON, and MILLER. J.T.. concur.