# Mobley v. Brown > Supreme Court of Oklahoma · September 15, 1931 · 151 Okla. 167 URL: https://www.frixlaw.com/law-library/cases/3817207 ## Case - **Full name:** MOBLEY v. BROWN Et Al. - **Court:** Supreme Court of Oklahoma - **Decided:** September 15, 1931 - **Citations:** 151 Okla. 167; 2 P.2d 1034; 83 A.L.R. 1014; 1931 OK 528; 1931 Okla. LEXIS 586 - **Precedential status:** Published - **Opinion:** Dissent by Lester - **Judges:** Riley, Hefner, Cullison, Swindall, Andrews, McNeill, Kornegay, Lester, Clark - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3817207 ## Opinion text LESTER, O. J. (dissenting). It is with reluctance that I file a dissenting opinion, for I am aware that our reports are already burdened with dissenting opinions. Herein I shall, as briefly as possible, express my reasons for dissenting to the majority opinion. Section 7295, O. O. S. 1921, provides in part: “In any proceeding for the enforcement of a claim for compensation under this act, it shall be presumed in the absence of substantial evidence to the contrary; “1. That the claim comes within the provisions of this act. * * *” The above provision was given emphasis by this court in the case of Dillon v. Dill-man, 133 Okla. 273 , 272 Pac. 373 . This court in that ease said: “The question raised here was not presented to the Commission. It was not contended before the Commission that the occupation was not hazardous, but is raised for the first time in this court. * * * So the presumption that the claim comes within the provisions of the act must prevail. There was no testimony to the contrary. Petitioners did not contend before the Commissioners that this was not a hazardous employment. Respondent in his brief states that he could have presented more testimony as to his employment, although there was no evidence presented by petitioners in the court below to the contrary. We think the evidence was sufficient to sustain the finding of the State Industrial Commission that the respondent was engaged in a hazardous employment.” In the instant case the employer did not offer any evidence before the Industrial Commission that the claim did not come within the provisions of the Workmen’s Compensation Act. Section 7295, supra, does not say that the presumption may be overcome by some evidence, slight evidence, or any evidence, but in the absence of substantial evidence to the contrary the presumption prevails that a claim comes within the act. I see no reason for applying the above rule in the case of Dillon v. Dillman, supra, and in refusing to apply the same rule in the instant case. The employee was injured while riding a motor-driven machine used by his employer in delivering merchandise sold at a profit. Human toll in industry has always been heavy. Industrial organizations are continuously causing the employment of an ever increasing number of persons to facilitate the needs of their organizations. Workmen’s Compensation Laws have been passed to compensate as nearly as possible for the injuries caused to persons employed in the industries: .These laws are to be construed in the spirit that wrought their enactment, to wit, that industry should bear the cost of the injuries to its employees therein. In the instant case the employer testified that the use of motorcycle-driven machines was employed by him for the reason that they insured rapid and speedy delivery of merchandise sold by him. The record does not show whether or not the employer ran a wholesale drug Store. If he did, he is within the act; if he did not, it was his duty, to show by substantial evidence that the claim did not come within the presumption of the Workmen’s Compensation Act. In this case the employee was a youth of the age of 19 years, so that we at once see that a machine unprotected from danger to the rider, rapid in speed, was furnished a youth in order to deliver merchandise through the congested traffic of a large city for the purpose of making profit for his master, and when this youth was struck down by traffic and his back and limbs broten, the employer attempts to coolly withdraw from his responsibility and leaves the wreck of youth to struggle unaided and alone. The majority opinion ignores the doctrine laid down in the case of Dillon v. Dillman, 133 Okla. 273 , 272 Pac. 373 , construing section 7295, C. O. S. 1921. The court should not have entered into mere speculation that the petitioner was engaged in the busine»*, of a retail drug store, and, therefore, the dismissal of the claim of the employee; it should at least send the ease back to the Industrial Commission to take evidence on tnat point. In my judgment the award should be affirmed. I, therefore, dissent. Note. — See under (2) annotation in L. R. A. 1916A, 215; 1917D, 89; 7 A. L. R. 1305; 13 A. L. R. 1386; 28 R. C. L. 755; R. C. L. Perm. p. 6201; R. C. L. Pocket Part, title Workmen’s Compensation, § 50. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3817207. Public record. Not legal advice.