Svoboda v. Brooking

CLARK, J. This is an original action filed in this court by Joe Svoboda, petitioner, to review an award of the Industrial Commission made and 'entered the 31st day of May, 1927, which awarded to the respondent, Louis Brooking, $9.61 per week for 100 weeks and medical expenses incurred by claimant as a result of an accident. The Industrial Commission found that respondent was injured while performing manual labor arising out of and in the course of his employment, Petitioner contends that the award of the Industrial Commission is in error in this; (1) That the employment was not hazardous. (2) That Svoboda was not an employer within the meaning- of the industrial law. (3) That the claimant was not an employee. (4) That they were not engaged in an employment as defined by the Workmen’s Compensation Act. (5) The claimant’s disregard of instructions and orders of th'e employer, and that his injuries occurred by •reason thereof. The record discloses that petitioner Svobo-da was operating a blacksmith shop and was also engaged in the mercantile business. He bought and sold coal, sand, e'ement, crushed rock, and other building materials. It was the duty of the. claimant to load and haul in trucks the different building materials. On the day of the injury, which was on or about July 31. 1926, petitioner was engaged in building or constructing a warehouse. He was using a concrete-mixer with a gasolin’e motor for turning. This motor *291 would not operate. Respondent, Lewis Brooking, attempted to crank the motor. The crank flew off and struck him in the eye, which resulted in the loss of vision of the right eye. At the time respondent, Brooking, was injured, three or four other men were working with him and were constructing concrete foundations or concrete pillars for petitioner’s warehouse. There is no question but what Brooking was the employee and Svoboda was employer. Section 7283, C. O. S. 1921, as amended by chapter 61, Session Laws 1923, provides what employments are hazardous, and provides, among’ other things, “construction work,” and section 7284, as amended by chapter 61, Session Laws 1923, provides: “ ‘Hazardous employment’ shall mean manual or mechanical work, or labor, connected with or incident to one of the industries, plants, factories, lines, occupations or trades mentioned in section 7283. * * *” The construction of buildings or any construction work where machinery is used ' comes within the definition of hazardous employment. Svoboda was building a warehouse and employed four men to work for him, which comes within the act. “Whether or not respondent was injured in the course of his employment is a question of fact which is amply supported by the. record. Petitioner contends that the employment was casual, and cites many cases from other states holding with this contention, but none of these states has a statute similar to ours. Most of them except casual employment, but. this was not a casual employment. as the employee had been working for some time with petitioner, and it was his duty to“ haul rock, gravel, and sand, and to overhaul the trucks used in the hauling of this rock, gravel, and sand, and at the time of the injury he was operating a concrete-mixing- machine, which clearly comes within the statutory definition of hazardous employment. This court, in the case of Wick v. Gunn, 66 Okla. 316, 169 Pac. 1087, in the first and second paragraphs of the syllabus said: “1. The Workmen’s Compensation Act of this state (Laws 1915, c. 246) must be construed as a whole, and all presumptions indulged will be in favor of those for whose protection the statutory compensation was fixed, and who, by the terms of the act, are deprived of the ordinary remedies open to others whose rights are invaded. “2. In order to defeat an award for injuries under the Workmen’s Compensation Act, the case must come clearly within the statutory exceptions barring the award. The burden of proof is upon the employer to establish facts constituting a bar to compensation.” It is next contended that claimant was cranking the machine against instructions of petitioner, Svoboda. Svoboda testified that he. issued orders for the men not to crank the machine. Brooking testified that he never had any such instructions. The record discloses that Svoboda put Brooking in charge of the concrete-mixer and the running of it. This was a question of fact found by the Industrial Commission against the contention of petitioner, and the rule is too well settled to need citation of authorities that, where there is any evidence reasonably tending to support the finding and award of the Industrial Commission, the same: will not be disturbed on review by this court. The award of the Industrial Commission is affirmed. BRANSON, C. J., MASON, V. C. J., and PHELPS, LESTER, RILEY, and HEFNER, JJ., concur.