Carpenters & Joiners Local Union v. Garmes , 199 Okla. 399 ( 1947 )

PER CURIAM.

This is an original proceeding brought in this court by Carpenters & Joiners Local Union No. 1060 of Norman, Okla., hereinafter referred to as Union, and Accident & Casualty Insurance Company, petitioners, to review an award of the State Industrial Commission awarding compensation to respondent, George H. Garmes.

Respondent in due time filed his first notice of injury and claim for compensation wherein he stated that on May 16, 1946, while in the employ of petitioner Union and while engaged in working as a carpenter in the construction of a building, he sustained an accidental injury consisting of the loss of three fingers, lacerations to both legs and other portions of his body, resulting in permanent disability.

The trial commissioner before whom the case was tried found that on the 16th day of May, 1946, respondent, while in the employ of petitioner Union, sustained an accidental personal injury arising out of and in the course of his employment consisting of an injury to his right hand and awarded compensation.

It is the contention of petitioners that the evidence shows respondent at the time he sustained his injury was not employed to perform work in an occupation defined as hazardous by the Workmen’s Compensation Act carried on by his employer for pecuniary gain and that the commission was therefore without jurisdiction to award him compensation. We think this contention well taken. The evidence shows that petitioner Union constitutes a nonprofit labor organization, was organized for the mutual benefit and advantage of its members and to promote better working conditions; that it was the owner of some vacant lots in the city of Norman; that it decided to and later did erect a building upon such lots. The building consisted of a one story building and was constructed in three different compartments, two of which were rented, one later being occupied by a grocery store, one by a cafe and the other by the Union as a meeting place. Respondent testified that the building consisted of three structures; that is, there were three separate compartments, but all three compartments were covered by a single roof, but that there were three separate cantilever arches supporting the roof over each compartment; that it was while working on the compartment now occupied by the grocery store that he received the injury stated in his claim; that the building was constructed primarily to afford a meeting place for the Union.

The evidence further shows that this was the only building the Union had ever constructed; that it was not regularly engaged in the business of constructing buildings for others for pecuniary gain. It is further shown that it was necessary for the Union to borrow money for the purpose of constructing the building and that the proceeds derived from the rental are being used to retire this loan.

While the evidence shows that respondent at the time he sustained his injury was employed by the Union to perform work on the construction of a building, an employment broadly defined as hazardous by the Workmen’s Compensation Act, 85 O.S. 1941 §2, such employment, however, only becomes hazardous under section 3, subd. 5, when carried on by the employer for pecuniary gain. Since the evidence in this case fails to show that the Union employer of respondent was engaged in the construction of buildings for pecuniary gain, the commission was without authority to award him compensation. Respondent, however, refers to the evidence showing that the employer Union before the building was completed rented two compartments thereof for commercial purposes and now contends' that such evidence constitutes evidence sufficient to show that it was engaged in the business of constructing buildings for pecuniary gain. We have held to the contrary. In the case of Blakely v. Hamby, 187 Okla. 251, 102 P. 2d 581, we said:

“Where an employer is engaged in a nonhazardous business and employs some one to perform labor for him of a hazardous nature as an incident to such nonhazardous business, but not in the conduct of .same for pecuniary gain, such employee, if injured, does not come within the provisions of the Workmen’s Compensation Act, for subsection 5 of section 13350, O. S. 1931 (85 O.S. 1941 §3, subd. 5) provides ‘ “Employment” includes employment only in a trade, business or occupation carried on by the employer for pecuniary gain’.”

In that case the employer was engaged in the operation of a real estate and rental business. He employed a workman to repair and paint one of the rental houses owned by him; while engaged in such employment the workman sustained an accidental injury and filed a claim for compensation. We held that the employer in repairing and painting his rental house was not engaged in a business defined as hazardous under the Workmen’s Compensation Act for pecuniary gain and sustained an order of the State Industrial Commission denying compensation. The same conclusion was reached by us under a substantially similar state of facts in the cases of Harris v. Wallace, 172 Okla. 349, 45 P. 2d 89; Standard Savings & Loan Ass’n v. Whitney, 184 Okla. 190, 86 P. 2d 298.

In support of his contention respondent relies on the case of Denbo v. Roark, 196 Okla. 386, 164 P. 2d 977. The facts in that case show that the employer was engaged in the business of writing insurance. It issued policies providing that in case of damage to the property insured the insurer might elect to rebuild or repair the damaged property in lieu of a cash settlement. One of the business properties covered by a policy issued by it was partially destroyed by fire. It elected to and did proceed to rebuild the building and employed workmen for this purpose, one of whom while engaged in such work sustained an accidental injury. We there held that the employer insurer while engaged in rebuilding the damaged building was engaged in construction work, a work defined as hazardous by the Workmen’s Compensation Act, and that the acceptance of premiums upon the issuance of such policy rendered the insurer an employer for pecuniary gain within the meaning of the Workmen’s Compensation Act. Our conclusion in that case was based upon the theory that the evidence there was sufficient to show that the insurer and employer by virtue of the option contained in its policies undertook as a separate branch of its business to rebuild and repair buildings for others for pecuniary gain and was therefore engaged as to such separate branch of its business in a hazardous occupation within the meaning of the Workmen’s Compensation Act. No such state of facts is shown in this case. The Union employer of respondent had at no time engaged in the business of constructing buildings for others. It at no time and in no manner had engaged in the business of constructing buildings for pecuniary gain. Respondent at the time he sustained his injury was not employed to perform work for petitioner Union in any occupation defined as hazardous by the Workmen’s Compensation Act carried on by it for pecuniary gain. The commission was therefore without jurisdiction to award him compensation.

Award vacated, with directions to dismiss the claim.

RILEY, BAYLESS, CORN, GIBSON, and ARNOLD, JJ., concur. HURST, C. J., and DAVISON, V.C.J., dissent.