com

"In case of an injury resulting in the loss of hearing "pensation shall be payable in an amount to be determined by the Commission and not in excess of three thousand dollars: Provided, that compensation for loss of hearing * shall not be in addition to the other compensation provided for in this section, but shall be taken into consideration in fixing the compensation otherwise provided."

This provision of the act provides for compensation for loss of hearing in an amount to be determined by the commission, but not in excess of $3,000. Unlike the schedule of injuries provided in the act, the compensation provided for the loss of hearing is not based upon the wage received by the claimant at the time of the injury, but the amount of compensation to be awarded for loss of hearing is to be determined by the commission, not to exceed the maximum amount of $3,000.

In the instant case the commission specifically found that, as a result "of said accident, the claimant suffered loss of the hearing in his left ear. It seems quite clear to us that the loss of the hearing in the left ear is the loss of hearing as provided in the act, and that the claimant was entitled Ito the compensation provided for in the act, the amount thereof to be determined by the commission within the limitation fixed by the act. The commission determined the amount to which the claimant was entitled to -be $1,500. In these circumstances, we do not think that the amount as found by the commission was unreasonable, or that the commission acted arbitrarily in fixing the award in that sum.

The award of the commission is affirmed.

Pitchford, V. C. J., and Miller, Elting and Kennamer, JJ., concur.

OHIO DRILLING CO. ET AL. v. STATE INDUSTRIAL COMMISSION ET AL. (No. 12933.)

(Supreme Court of Oklahoma. May 2, 1922.)

207 Pacific Reporter 314.

Syllabus by the Court.

1. MASTER AND SERVANT-COMPENSATION LAW VALID EXERCISE OF POLICE POWER.

Chapter 246 of Session Laws 1915, which requires all employers, including partnerships, engaged in certain hazardous occupations therein enumerated to provide compensation according to certain schedules for all accidental injuries without regard to fault upon the part of said employer araising out of or in the course of employment, and such diseases and infections as may naturally and unavoidably result therefrom, by one of three methods prescribed in the act, and places the supervision and administration thereof under the State Industrial Commission, provides penalties for violations of the act, and abrogates the right of action to recover damages not resulting in death, except a right of action reserved to the State Industrial Commission, for the benefi of an injured employee, is within the authority of the Legislature, and the enactment thereof was a legitimate exercise of the police power of the state.

(For other cases, see Master and Servant, Dec. Dig. § 347.)

2. MASTER AND SERVANT-INDUSTRIAL COMMISSION'S DECISION ON QUESTIONS OF FACT IN COMPENSATION CASE FINAL.

By the provisions of secion 10 of article 2 of the Workmen's Compensation Law (chapter 246, Session Laws 1915) the decision of the State

32 Vol. X-Comp.

Industrial Commission is made final as to all questions of fact, and on appeal to this court from an award of the Industrial Commission the court is without jurisdiction to weigh the evidence for the purpose of determining whether the same preponderates in favor or against the findings of fact made by the Industrial Commission.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

3. MASTER AND SERVANT PARTNER INJURED IN PARTNERSHIP BUSINESS HELD ENTITLED TO COMPENSATION AS "EMPLOYEE."

Where the business of a partnership is such as comes within the provisions of the Workmen's Compensation Law of this state, which compels the partnership to comply with the provisions of the law requiring it to provide compensation for its injured employees by furnishing insurance in one of the ways provided for in the act, which was done by the partnership by contracting with an insurance company for that purpose, and where the partnership was composed of four members, who were the sole employees of such partnership in carrying on its business, and one of whom happened to be accidentally injured under the circumstances that would entitle an employee who was not a member of the partnership to compensation, likewise entitled the injured partner to compensation where the four members of the partnership performed all the labor incident to its business and did not hire other employees to perform the labor, and where each member of the partnership drew the same wage, which was paid from the earnings of the partnership, and the net income from the business of the partnership was equally divided between the four members thereof, the Industrial Commission was correct in holding that such injured employee was entitled to the compensation provided by the schedule of the act, and the order of the Commission awarding such compensation should be affirmed; and it is so ordered.

(For other cases, see Master and Servant, Dec. Dig. § 361.)

(For other definitions, see Words and Phrases, First and Second Series, Employee.)

Appeal from State Industrial Commission.

Proceedings under the Workmen's Compensation Law by C. D. Hupp for compensation for injuries, opposed by the Ohio Drilling Company, employer, and the Etna Life Insurance Company, insurance carrier. Award by the State Industrial Commission for claimant, and employer and insurance carrier appeal. Affirmed.

Moss & Owen, of Tulsa, for petitioners.

George F. Short, Atty. Gen., and Kathryn Van Leuven, Asst. Atty. Gen. for respondents.

JOHNSON, J. The petitioner seeks by petition to this court, with a transcript of the proceedings had before the State Industrial Commission attached to such petition, a review by this court of the following award made to the claimant, C. D. Hupp, to wit:

"Now on this 7th day of December, 1921, this cause comes on to be determined on the claimant's claim for compensation for an injury which he alleged occurred to him while in the employment of the Ohio Drilling Company on the 22d day of September, 1920, near Slick, Okl., and the Commission having considered the testimony taken at a regular hearing at Cushing, Okla., on the 22d day of November, 1921, before a member of the Commission, at which hearing the claimant appeared in person and the respondent and insurance carrier were represented by H. M. West, and having all the records on file in said cause and being otherwise well and sufficiently advised in the premises, finds the following facts:

“(1) That the claimant herein was in the employment of the Ohio Drilling Company, and was engaged in a hazardous occupation within the meaning of the statute, and that while in the employment of said respondent and in the course of his employment the claimant received an accidental injury, on the 22d day of September, 1920.

"(2) That as a result of said accident the claimant suffered the loss of use of the index finger on the left hand.

"(3) That the respondent had proper notice of said accident, and the employee filed his claim for compensation with the Commission within the statutory period.

"(4) That the claimant's average wage at the time of his injury was $14 per day.

"The Commission is therefore of the opinion that by reason of the aforesaid facts the claimant is entitled, under the law of compensation, at the rate of $18 per week for a period of 35 weeks.

"It is therefore ordered that within 10 days from this date the Ohio Drilling Company, or the Etna Life Insurance Company, pay to the claimant compensation computed from the 22d day of September, 1920, at the rate of $18 per week, and continue said payments weekly for a period 35 weeks until the sum of $630 is paid, and also pay all medical expenses incurred by said claimant as a result of said accident."

The petitioners' assignments of error are:

"(1) There was no evidence submitted to the Commission which warranted the Commission in finding that the claimant was an employee of the Ohio Drilling Company, and such finding by the Commission was unwarranted, and has no basis in the evidence offered before the Commission, and could not be found as a fact, there being no evidence introduced which made it legally possible for the Commission so to find.

"(2) The evidence at the hearing conclusively established that the claimant was not an employee of the Ohio Drilling Company, and that the said Ohio Drilling Company was a copartnership, and that the said C. D. Hupp was one of the members of such copartnership.

"(3) That the only finding that the Commission had a legal right to make, in view of the evidence offered before it, was that the claimant, C. D. Hupp, was not an employee of the Ohio Drilling Company, and that the Ohio Drilling Company was a copartnership, and that said C. D. Hupp was one of the copartners.

"Wherefore, upon final determination, petitioners pray that such award or decision be reversed and vacated."

Concerning these assignments of error, counsel for petitioners say in their brief:

"This is an appeal from an order of the State Industrial Commission, awarding compensation to C. D. Hupp on account of an injury sustained by him. The Commission found that Hupp was en employee of the Ohio Drilling Company, and that while so employed he was injured, and entitled to compensation, and the Ohio Drilling Company and the Ætna Life Insurance Company, the insurance carrier, were ordered to pay the compensation awarded. It was contended at the hearing before the Commission that Hupp was not an employee of the Ohio Dirlling Company, but that the Ohio Drilling Company was a copartnership, and that Hupp was one of such copartners. The Commission found that Hupp was an employee of the Ohio Drilling Company, and awarded certain compensation. This appeal was perfected to review such decision on the ground that the finding of the Commission to the effect that Hupp was an employee was without any support whatever in the evidence. We understand that the law is that if there is any evidence whatever to support the Commission's finding, it is conclusive as to any question of fact. It is our contention, however, that there was absolutely no evidence upon which the Commission could base the finding."

It is perfectly clear that the evidence of the claimant, which was the only evidence introduced upon the subject, showed that the Ohio Drilling Company was a copartnership, and that Hupp was one of the partners. It is true that the claimant, in response to the second question asked him, which was as to for whom he was working at the time of the injury, answered such question by saying that he was working for the Ohio Drilling Company. He makes perfectly clear, however, in his evidence, that the Ohio Drilling Company was a copartnership composed of himself, B. W. Hupp, John Lowry and Billy Coon; that these four men owned the tools and participated equally in the profits; that they each took out $14 per day until the tools were paid out; that they four partners were the only employees of the partnership.

Counsel cite in support of their contention the decision of the Industrial Commission of this state in the case of Albert G. Kirby v. New Model Laundry, Ætna Life Insurance Co., Insurance Carrier (No. 691) Okl. Ind. Com. Rept. 62, where, in the syllabus the Commission said:

"Under the Workmen's Compensation Law of Oklahoma, a member of the partnership who works as a driver of an automobile delivery wagon for said partnership and while so engaged fractured his arm is not an employee within the meaning of the act. Compensation denied."

In the body of the opinion in this case, it was stated as follows: "The Commission has not been favored by any briefs in this case, and we have been unable to find any American cases on this proposition.

"The British act, in defining employer and employee, is similar to ours, and we have found a number of British cases construing their law.

"In the case of Ellis v. Ellis & Co. [1905] 92 L. T. 718, 7 W. C. C. 97, it was held:

'When partners entered into an agreement that one of their number should act as a working foreman and he received 33 shillings a week for his services as such in addition to his share of the profits, it was held that his widow was not entitled to compensation from the other partners because of the death of such foreman partner by accident, as he was not a workman within the meaning of the act'."

Counsel have cited no other cases in support of their contention, and we know of none, and it is apparent in the instant case that the Industrial Commission has reversed itself, and thereby refuses to follow its decision in the Kirby Case, supra.

[3] We are constrained to approve the holding of the Commission in the instant case. Section 2 of Workmen's Compensation Act, c. 246, Session Laws, 1915, as amended by chapter 14, § 1, Session Laws 1919, provides compensation shall be payable for injuries sustained by employees engaged in hazardous employments, which include the business of drilling wells by machinery, and subdivision 1, § 3, c. 14, provides that hazardous employment shall mean manual or mechanical work or labor connected with or incident to one of the industries named in section 2.

And section 3, subdivision 3, of chapter 246, Session Laws 1915, provides that:

"Employer,' except where otherwise expressly stated, means a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association, or corporation, employing workmen in hazardous employments, and shall include the state, county, city or any municipality when engaged in any hazardous work within the meaning of this act in which workmen are employed for wages."

Subdivision 4 provides:

"'Employee,' means any person engaged in manual or mechanical work, in the employment of any person, firm or corporation carrying on a business covered by the terms of this act."

Section 1 of article 3 of chapter 246 of Session Laws 1915, as amended by section 11, at page 22, chapter 14, Session Laws 1919, provides that:

"An employer shall secure compensation to his employees in one of the following ways: (a) By insuring and keeping insured the payment of such compensation" by some one of the character of the insurance companies named in the section.

[1, 2] The Workmen's Compensation Law, chapter 246, Session Laws 1915, has been uniformly held valid by this court against all attacks made upon it upon constitutional or other grounds. The reasons therefor were given in detail and at great length by this court in the case of Adams v. Iten Biscuit Co., 63 Okl. 52, 162 Pac. 938, in an exhaustive opinion by Hardy, J., and in Wick et al. v. Gunn et al. (Okl. Sup.) 169 Pac. 1087, 4 A. L. R. 107; Booth & Flynn, Ltd., v. Cook et al., 79 Okl. 282, 193 Pac. 36, and many other decisions of this court might be cited to the same effect. Likewise the act amendatory of the original act (chapter 14, Session Laws 1919) has been sustained by this court, and a very recent case is that of Missouri Valley Bridge Co. v. State Industrial Commission, 206 Pac. —, decision April 25, 1922, not yet officially reported, where in was held, among other things, that the decision of the State Industrial Commission is made final as to all questions of fact, and on appeal to this court from an award of the Industrial Commission the court is without jurisdiction to weigh the evidence for the purpose of determining whether the same preponderates in favor or against the findings of fact made by the Commission. Also, that these acts creating the Industrial Commission and defining its powers were a proper exercise of the police powers of the state by the Legislature, and were a departure from, and in derogation of, the common-law rule of damages, and that under section 2948, Rev. Laws 1910, should be liberally construed so as to accomplish the legislative intent.

The Attorney General, in his brief in support of the doctrine announced in the decision, supra, the case of City of Milwaukee v. Henry Miller et al., 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A, 1, Ann. Cas. 1915B, 847, which is a very exhaustive opinion by Marshall, Justice, where, in the syllabus, it is said:

"3. In construing a statute which is referable to the police power and was originated to promote the common welfare, supposed to be seriously jeopardized by the infirmities of an existing system-the conditions giving rise to the law, the faults to be remedied, the aspirations evidently intended to be embodied in the enactment, and the effects and consequences as regards responding to the prevailing conception of the necessities of public welfare should be considered and the enactment given such broad and liberal meaning as can be fairly read therefrom so far as required to effectively eradicate the mischiefs it was intended to obviate.

"4. Proper administration of the Workmen's Compensation Act requires appreciation of the manifest legislative purpose to abolish the common-law system regarding injuries to employees as unsuitable to modern conditions and conceptions of moral obligations, and erect in place thereof one based on the highest present conception of man's humanity to man and obligations to members of the employee class-one recognizing every personal loss to an employee, not self-inflicted, as necessarily entering into the cost of production and required to be liquidated in the steps ending with consumption.

"5. In dealing with a personal injury claim under the Workmen's Compensation Act, the logic and makeweights formerly supposed to justify penalizing employers as wrongdoers, to the ultimate expense of consumers, should not be allowed to play any part; but the directly responsible party should be regarded as standing for the aggregate of consumers and joining with the injured person in submitting to the sound judgment of impartial administrators the question of how much, under all the circumstances, by legislative standards, should the public be burdened as a reparation to such person or his dependents for his or their loss."