Butler v. State Industrial Accident Commission

318 P.2d 303, 212 Or. 330, 1957 Ore. LEXIS 199
CourtOregon Supreme Court
DecidedNovember 13, 1957
StatusPublished
Cited by8 cases

This text of 318 P.2d 303 (Butler v. State Industrial Accident Commission) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. State Industrial Accident Commission, 318 P.2d 303, 212 Or. 330, 1957 Ore. LEXIS 199 (Or. 1957).

Opinions

LUSK, J.

The question on this appeal is whether a school district, which elects to take the benefits of the Workmen’s Compensation Law as an employer engaged in a nonhazardous occupation and expressly limits the desired coverage to the school janitor, nevertheless becomes [332]*332thereby subject to the provisions of the Act as to all its employees including its teachers.

On January 7, 1938, School District No. 3, Gilliam County, Oregon, filed with the commission on a printed form prepared by it a “Notice of Election to Contribute to the Industrial Accident Fund.” The application contained the following:

“The undersigned, being engaged as an employer in an occupation which is not defined as hazardous by the Workmen’s Compensation Law, hereby gives notice, pursuant to the provisions of Section 49-1840, Oregon Code 1930 [ORS 656.034], as amended, of electing to contribute to the Industrial Accident Fund to cover the following occupations: The operation of buildings, including janitors.
“Name under which employer transacts business . . . School District No. 3, Gilliam Co.
“Nature of occupation or business covered by this notice (describe fully) . . . school janitor.”

The school district has ever since the filing of this notice been subject to the Act.

On January 26, 1956, the plaintiff, a teacher employed by the school, fell and was injured while walking down the school steps. It is stipulated that her injury was sustained by accident arising out of and in the course of her employment. Plaintiff filed a claim for compensation with the defendant commission, but the claim was rejected for the reason that “there is no evidence that plaintiff was employed subject to the provisions of the Workmen’s Compensation Law at the time of said accidental injury.” Plaintiff appealed to the circuit court, which, after a trial without a jury and on stipulated facts, entered findings of fact and [333]*333conclusions of law and a judgment in her favor. The commission has appealed.

In addition to the facts already stated, the court found that at the time of the plaintiff’s accident School District No. 3 employed seven persons, including plaintiff, as teachers in its school, one principal, one clerk, three bus drivers, two cooks and one janitor; that neither the plaintiff nor any other teacher, nor any other employees of the school district except the janitor had contributed to the "Workmen’s Compensation Fund; that the school district had made no contributions save and except those based upon the employment of the janitor; that the employer had in its employ persons engaged in several separate nonhazardous crafts or occupations, and that plaintiff’s occupation at the time of her injury was that of a school teacher and not that of a janitor or maintenance worker.

Conclusions of law Nos. I and II entered by the court are as follows:

“I
“The word ‘occupation’ used in the Compensation Act has reference in the case at bar to the occupation of the employer rather than the various crafts of the employees.
“II
“When the School District elected to come under the Compensation Act as to an employee, every employee engaged in its single occupation became covered under the Compensation Act and at all times herein mentioned, plaintiff was covered by the Compensation Act and entitled to the benefits of said Act.”

The crux of the controversy is found in the foregoing conclusions of law. The basic questions are whether coverage is determined by the occupation of [334]*334the employer or that of the employee, and, if the former, whether the school district has but a single occupation, that of providing free public education, or whether, on the other hand, the business of maintaining a school building can properly be regarded as a separate occupation.

The commission contended in the circuit court that the occupation of the employee controls, and reiterated that contention in its brief in this court. On the argument, however, counsel for the commission conceded that his confidence in this position was shaken. We think that the language of the pertinent sections of the Act makes it clear that it is the occupation of the employer, not the employee, which is the determining factor here.

The statute pursuant to which the school district became subject to the Act is OES 656.034, which reads:

“Any employer, including any municipal corporation and the state or any political subdivision thereof, engaged in any occupation other than those defined as hazardous by OES 656.082 to 656.086 * * * may file notice in writing with the commission of his election to contribute to the Industrial Accident Fund upon such occupation * * * The employer and Ms workmen in such occupation shall be subject to” the Workmen’s Compensation Law.

Obviously the election given by this statute is to an employer engaged in a nonhazardous occupation.

OES 656.022 provides that “All persons engaged as employers in any of the hazardous occupations specified” elsewhere in the Act shall be subject to the Act except that an employer may elect to be relieved of certain of its obligations and to lose its benefits (Subdiv. 1); that where an employer is engaged in separate occupations, one hazardous and one or more [335]*335nonhazardous, he shall not be subject to the Act as to the separate nonhazardous occupations, nor shall his workmen wholly engaged in such separate nonhazardous occupations be subject to the Act except by an election as authorized by ORS 656.034 (Subdiv. 2) ; that employers who are engaged in an occupation, partly hazardous and partly nonhazardous, come under the Act as if the occupation were wholly hazardous (Subdiv. 3); and, finally, Subdiv. 4 provides:

“It is the purpose of this section that an occupation and all work incidental thereto and all workmen engaged therein shall be wholly subject to or wholly outside the provisions of ORS 656.002 to 656.590 [the Workmen’s Compensation Law].”

The first three subdivisions of this section deal in express terms with the occupation of the employer. The word “occupation” in Subdiv. 4 was directly held to refer to the occupation of the employer in the recent case of Bos v. State Industrial Accident Commission, 211 Or 138, 315 P2d 172, 175. We there said:

“* * * Here again the legislature adopts a double-barreled provision. First it is the purpose that an occupation (the employer’s occupation) and all work incidental thereto shall be wholly subject to or wholly outside the provisions of the compensation act. Second, it is the purpose that all workmen engaged therein, to wit, in an occupation of the employer, shall be wholly subject to or wholly outside the provisions of the compensation act.”

ORS 656.122 reads:

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Related

State v. Acosta
827 P.2d 1368 (Court of Appeals of Oregon, 1992)
Westfall v. Tilley
476 P.2d 797 (Court of Appeals of Oregon, 1970)
Babb v. Lewis
419 P.2d 423 (Oregon Supreme Court, 1966)
Richert v. State Industrial Accident Commission
401 P.2d 701 (Oregon Supreme Court, 1965)
Manning v. State Industrial Accident Commission
380 P.2d 989 (Oregon Supreme Court, 1963)
Standard Insurance v. State Tax Commission
370 P.2d 608 (Oregon Supreme Court, 1962)
Butler v. State Industrial Accident Commission
318 P.2d 303 (Oregon Supreme Court, 1957)

Cite This Page — Counsel Stack

Bluebook (online)
318 P.2d 303, 212 Or. 330, 1957 Ore. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-state-industrial-accident-commission-or-1957.