Death of Hurlburt v. Patton Assoc.

1981 OK CIV APP 67, 638 P.2d 473, 1981 Okla. Civ. App. LEXIS 159
CourtCourt of Civil Appeals of Oklahoma
DecidedSeptember 22, 1981
DocketNo. 56494
StatusPublished
Cited by1 cases

This text of 1981 OK CIV APP 67 (Death of Hurlburt v. Patton Assoc.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Death of Hurlburt v. Patton Assoc., 1981 OK CIV APP 67, 638 P.2d 473, 1981 Okla. Civ. App. LEXIS 159 (Okla. Ct. App. 1981).

Opinions

BOYDSTON, Judge.

This appeal is by the common-law wife of insurance adjuster from judgment of Oklahoma State Workers’ Compensation Court denying her claim for death benefits on the grounds: (1) she was not a “surviving spouse” within the meaning of 85 O.S.Supp. 1980 § 3.1(A)(2) because she was not living with or actually dependent upon the deceased at the time of his death . .. nor was she “living with or actually dependent” upon the deceased ... nor living apart for [474]*474“justifiable cause,” and (2) deceased, John A. Hurlburt, was on a “personal mission completely unrelated to his employment” at the time of his injury. Trial court did find petitioner “was an heir-at-law” who suffered a pecuniary loss by reason of the death, which we construe to mean petitioner was found to be deceased’s common-law wife at the time of his death, but not entitled to death benefits under the provisions of the workers’ compensation act.

Petitioner raises both issues on appeal. We find the issue whether deceased was acting in the scope of his employment at the time of his death is dispositive. We therefore limit the discussion to that sole issue, affirming the decision rendered below.

I

The appellate court is limited on review to whether the record contains competent evidence to support the trial judge’s decision. Oklahoma City v. Schoonover, Okl., 535 P.2d 688 (1975); Cassidy v. Harding, Okl., 451 P.2d 698 (1969); and Ebersole v. Beck Mining Division, Okl., 276 P.2d 201 (1954). And the decision should not be disturbed even if a contrary conclusion is permissible under the same evidence.

The undisputed facts are that deceased was a claims adjuster for Patton and Associates of Tulsa. On the night of his death, February 29, 1980, it was snowing and sleeting and the streets were icy. Brian and Teresa Kindig, his next door neighbors, testified he visited with them between 7 and 8 o’clock p. m. and asked them to watch his apartment. He told them he had just received a call and that he was going on a job to somewhere around Sapulpa and would not be back that night.

Petitioner testified she first married John Hurlburt in March, 1976, and they divorced in May, 1976. They remarried in June, 1977, and divorced again in June, 1978. In January, 1979, they resumed living together but never remarried ceremonially. She ordered him to leave in October or November because he was having an affair with a neighbor in the condominium complex where they lived. After that, they lived separately. However, they continued their joint checking accounts, he still received mail there, and she stated, “He was by every couple of days to pick up his mail and see if I needed anything. He occasionally gave me money, bought groceries, or bought gifts. We generally saw each other every couple of days.”

On the night of his death, she testified he came by her apartment, brought her some cigarettes and told her he had received a call to go investigate a truck accident on the Turner Turnpike. He then left. About an hour later, she received a call from Dr. J. in Sapulpa advising her Hurlburt had been killed in an auto accident near Bristow.

Respondent insurance company introduced the testimony of Ursula Parker, who lived in Oklahoma City at the time Hurl-burt died. She related he called her on that fateful night early in the evening, but after dark. She testified:

A. He said he wanted to come over, and I said — he wanted to know if I would help him with some insurance papers, and I said yes, I would, but, then it was such a horrible night, I talked him out of coming over, and he agreed to it finally. I did some tall talking. I told him it wasn’t a fit night out for anyone, and I think everything was iced over that night
******
Q. Did you have another conversation with him that night?
A. Yes. . . . somewhere between thirty and forty-five minutes or an hour, maybe, my phone rang again.... it was John on the phone again.
Q. [W]hat was the conversation about?
A. Very short. He said I am coming anyway, I have already made reservations, I am leaving right now and when I get to Oklahoma City I’ll call you, and that was it.

Employer, Frank Patton, testified deceased was only assigned one case in February, 1980, and it was a workers’ compensa[475]*475tion case. He also stated the two truckline company clients who directly assign cases in the area would have called him first; that he was home that night, received no calls and no follow-up inquiry such as one would expect had there been an accident to which deceased might have been called. Patton admitted it was “possible” deceased may have been called out directly, though it would have been a rare case. This is substantiated by the fact that the day after the accident, Patton called the two clients who could have had an accident and called Hurl-burt directly, and neither reported an accident that night.

We summarize the evidence as follows: Deceased was subject to 24 hour call to work claims assigned by employer. It is possible a client called him directly to work an accident on the turnpike. One hour before his death he told his neighbors he intended to work a job near Sapulpa; he told his common-law wife he was going to work a truck accident on the Turner Turnpike, but failed to specify the location. At about the same time, he called a lady friend, Ursula, in Oklahoma City and insisted on visiting her that night, stating: “I am leaving right now.” One hour later, he died on the ice-glazed turnpike four miles beyond the Sapulpa exit. Deceased’s employer had no claim reported on the turnpike for that date.

Claimant urges the decision be reversed, citing In re Martin, Okl., 452 P.2d 785 (1969), and correctly urging the proposition set forth in that case that:

Any reasonable doubt as to whether an injury did in fact arise out of employment should be resolved in favor of the workman.

The Martin case indeed reaffirms this decisional standard previously established in Nebo Oil Co. v. Wright, Okl., 406 P.2d 266 (1965), Graham-McMichaelis Drilling Co. v. Atkins, Okl., 397 P.2d 658 (1964), and Mullins v. Tanksleary, Okl., 376 P.2d 590 (1962). This line of authority extends back through Town of Granite v. Kidwell, Okl., 263 P.2d 184 (1953), which appears to bed-rock in Tingey v. Industrial Accident Commission, 22 Cal.2d 636, 140 P.2d 410 (1943). In each case the supreme court used the phrase to buttress a decision in favor of the workman, usually where there was conflicting evidence.

More important, this phrase is always prefaced with the appellate review criterion that:

[Wjhether an injury arose out of employment is one of fact to be determined by the State Industrial Court whose finding on such issue will not be disturbed on review when supported by competent evidence.

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1981 OK CIV APP 67, 638 P.2d 473, 1981 Okla. Civ. App. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/death-of-hurlburt-v-patton-assoc-oklacivapp-1981.