ALLEN v. STATE INDUS. COMM'N

ALLEN v. STATE INDUS. COMM'N
1938 OK 470
83 P.2d 808
183 Okla. 585
Case Number: 28404
Decided: 10/04/1938
Supreme Court of Oklahoma

Allen
v.
State Indus. Com'n

Syllabus by the Court.

¶0 1. WORKMEN'S COMPENSATION--Plant Held "Creamery Operated by Power" if Milk or Cream Is Processed Therein, Whether Butter Is Made Therein or not.
A creamery is an establishment where milk or cream is processed whether butter is made therein or not; and where the processing is done by power driven machinery it constitutes a creamery within the definition of the Workmen's Compensation Law, Section 13349, O.S.1931, 85 Okl.St.Ann. § 2.
2. SAME--Law Applicable Where Employee's Work Is Integral Part of Industry Defined as Hazardous Though Work Performed in Place or Under Conditions not Inherently Hazardous.
When the work of an employee is manual or mechanical and is connected with, incident to, and an integral part of business or industry enumerated in and defined as "hazardous" by the Workmen's Compensation Law, such employee is both protected and bound by the provisions of said act notwithstanding the fact that such work may be performed in a room or place or under conditions not inherently hazardous. Pemberton Bakery v. State Industrial Comm., 180 Okl. 446, 70 P.2d 98.

Original proceeding by Elmer T. Allen, compensation claimant, to review an order of the State Industrial Commission, denying an award to the claimant on ground that the business of the Standard Company, employer, was not covered by the Workmen's Compensation Law.

Award vacated, with directions.

Philip J. Kramer and R. P. Colley, both of Tulsa, for petitioner.
Claud Briggs and John Morrison, both of Oklahoma City, and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 On the 1st day of January, 1935, Elmer T. Allen sustained an accidental injury while employed by the Standard Company. He was delivering milk in the residential district in Tulsa, Oklahoma when he was run into by an automobile driven by a third person and sustained the injury of which complaint is made.

¶2 On the 18th day of January, 1938, the State Industrial Commission entered its order denying an award on the ground that the business of the employer was not covered by the Workmen's Compensation Law, 85 Okl.St.Ann. § 1 et seq.

¶3 The parties will be referred to as petitioner and respondent. Petitioner seeks to vacate the order denying the award on the authority of Pemberton Bakery v. State Industrial Commission, 180 Okl. 446, 70 P.2d 98 and Beatrice Creamery Co. v. State Industrial Commission, 174 Okl. 101, 49 P.2d 1094.

¶4 The uncontradicted evidence was that the respondent was engaged in the distribution of milk products and for such purpose maintained a plant where the bottles were washed, sterilized, filled and capped by machinery. That there was power driven machinery for this purpose and that in addition thereto there was in said plant a churn or agitator for buttermilk; and a pasturizing plant or equipment for the pasturizing of sweet milk and that this machinery was also power driven.

¶5 Section 13349, O.S.1931, 85 Okl.St.Ann. § 2, specifically includes employment in a creamery run by power as one of the employments covered by the Workmen's Compensation Law. In Pemberton Bakery v. State Industrial Commission, supra, this court expressed the rule that if the work of an injured employee was covered by the Workmen's Compensation Law and at the time of the injury received he was doing anything incident to or connected with such employment his injury came within the provisions of the Workmen's Compensation Law. In that case it was specifically held that delivering for a wholesale mercantile establishment was something done incident to and connected with the employment.

¶6 It therefore follows that if the said petitioner was an employee of a creamery as described by section 13349, supra, and at the time of his employment was delivering the product of said creamery he was doing something incident to and connected with his employment and that the Commission erred in refusing to consider the nature and extent of his injury solely upon the basis that his employment was not covered by the Workmen's Compensation Law.

¶7 In discussing whether or not the respondent was a creamery within the definition of the Workmen's Compensation Law we shall refer to the following authorities. Webster's Dictionary (1933) New International; Elgin Butter Co. v. Sands, 155 Ill. 127, 134, 40 N.E. 616; Beatrice Creamery Co. v. State Industrial Commission, 174 Okl. 101, 49 P.2d 1094; Pawnee Ice Cream Co. v. Price, 164 Okl. 120, 23 P.2d 168; Neubeck v. Doscher, 204 App.Div. 617, 199 N.Y.S. 203; Cobbey's Ann.Stats.Neb.1903, Sec. 9410. Webster's New International Dictionary, supra, gives the following definition of a creamery:

"1. An establishment where butter and cheese are made or where milk and cream are sold or prepared for market, also, rarely the work of such an establishment.

2. A place or apparatus in which milk is set for creaming."

¶8 In Neubeck v. Doscher, supra, the court held [page 206]: "A consideration of the work places, the operations, and the products leads to the conclusion that the operation of the creamery is over when creamery products are produced and are separated from creamery operations by being sent to other places for sale."

¶9 This is contrary to the holding of this court in Pemberton Bakery v. State Industrial Commission, supra, and since therein the court has held that a deliveryman for a wholesale mercantile establishment is doing something incident to and connected with the employment in such wholesale mercantile establishment it therefore follows that the conclusion reached by the New York Court and the conclusion reached by this court in Beatrice Creamery Co. v. State Industrial Commission, supra, has been modified. Such modification does not change the definition of creamery therein contained. In Beatrice Creamery Co. v. State Industrial Commission, supra, we said [page 1096]: "While this court has not heretofore defined the term, yet in Pawnee Ice Cream Co. v. Price, 164 Okl. 120, 23 P.2d 168, we held that an ice cream plant was both a 'factory * * * where machinery is used' and 'a "creamery operated by power."' Mr. Justice Welch, speaking for the court, said: 'The employment engaged in was a "factory * * * where machinery is used," and a "creamery operated by power," and is one of the employments included in the Workmen's Compensation Act section 7283, C.O.S.1921, 85 Okl.St.Ann. § 2."'

¶10 Therein the syllabus is as follows: "A plant where milk and cream are received, processed, and prepared for market, either as such or in the form of butter or other dairy products, and where machinery and power are employed for such purpose, is a 'creamery operated by power."'

¶11 Cobbey's Ann.Stats., supra, is as follows: "For the purposes of this act [Pure Food Act], a creamery shall be defined as 'a factory where cream from milk with or without the addition of salt and coloring matter is churned into butter."'

¶12 In Elgin Butter Co. v. Sands, supra, the court said [page 617]: "A creamery is simply a place where butter is made, and it is not the size or capacity of the factory that makes it a creamery."

¶13 That was an action to enjoin the use of the name Elgin Creamery by a competitor. The action was unsuccessful and in rendering the opinion the court gave the definition.

¶14 At one time the most important, if not the only "processing" of milk was the making of butter and this would account for the earlier definitions. Now there may be many processes; and in the process or processes if power driven machinery is used we hold that the use thereof constitutes the same a creamery within the definition and meaning of section 13349, supra.

¶15 We think the more modern definition has been expressed both in the definition given by Webster's Unabridged Dictionary, supra, and in the opinion of this court as announced in Beatrice Creamery Co. v. State Industrial Commission, supra.

¶16 To hold otherwise would be to ignore the more modern definition of what constitutes a creamery.

¶17 We are therefore of the opinion and hold that the State Industrial Commission erred when it refused to consider the nature and extent of the injury and based its denial of the award to the petitioner upon the ground that the respondent was not covered by the Workmen's Compensation Law. Since it appears from the order entered that the other matters were not fully gone into the order denying the award is vacated and the cause is remanded to the State Industrial Commission with directions to take such proceedings as it may see fit not inconsistent with the opinion herein rendered.

¶18 Award vacated with directions.