Applying the rules announced in these decisions to the facts established in the instant case, we are of opinion that the injury sustained by claimant was an accidental injury, and that it arose out of and in the course of her employment. Petitioners next contend that the evidence wholly fails to show that claimant at the time of her injury was engaged in a hazardous occupation, and therefore covered by the provisions of the Compensation Law, citing J.B. Herd Hardware Co. v. Kirby, 160 Okla. 2, 15 P.2d 823; Plaza Grill v. Webster, 182 Okla. 533, 78 P.2d 818; McClung v. Colclasure, 197 Okla. 445, 172 P.2d 623, and Hurley v. O'Brien, 192 Okla. 490, 137 P.2d 592. Claimant relies principally upon Harbour-Longmire-Pace Co. v. Industrial Commission, 147 Okla. 207, 296 P. 456. Claimant also cite cases such as Beatrice Creamery Co. v. Industrial Commission, 174 Okla. 101, 49 P.2d 1094, and Voss Brothers Dairy v. Gardner, 195 Okla. 118, 155 P.2d 727, holding that the business of an employer may be conducted in separate departments, some of which come within the act and others which do not.
The operation of a restaurant, cafe, or eating establishment is not a hazardous business within the provisions of the Oklahoma Workmen's Compensation Act. Employees working at such business are not engaged in a "hazardous employment" as defined by the Act. Parlor v. John Mongold Drive-In Cafe, 204 Okla. 458, 230 P.2d 887; Rolen v. Callicutt et al., 204 Okla. 250, 228 P.2d 1010; Plaza Grill v. Webster, 182 Okla. 533, 78 P.2d 818; Melton v. United States Fidelity and Guaranty Co. (C.C.A. 10), 220 F.2d 555. Before commencing work as a custodian, claimant was required to have a license as a third class operating engineer.
r, Mary Elizabeth Hunter filed an action for personal injuries in the Superior Court of Okmulgee County. Petitioner alleges as a basis for the writ of prohibition, and the asserted lack of jurisdiction of the Superior Court, that the filing of a claim for compensation in the Industrial Court is an election by Mary Elizabeth Hunter to pursue her remedy under the Workmen's Compensation Act, that the judgment of that court is now final and that the election having been made, together with the "judgment" rendered by the Industrial Court, precludes this later action by the same claimant against the same defendant for the same injuries. Petitioner cites in support of this contention Rex Truck Lines, Inc., v. Simms, Okla., 401 P.2d 520; H.L. Hutton Co. v. District Court of Kay County et al., Okla., 398 P.2d 530; Dixie Cab Co. v. Sanders, Okla., 284 P.2d 421; McAlester Corp. v. Wheeler, 205 Okla. 446, 239 P.2d 409; Parlor v. John Mongold Drive-In Cafe et al., 204 Okla. 458, 230 P.2d 887; and Plaza Grill et al. v. Webster et al., 182 Okla. 533, 78 P.2d 818. These cases are distinguishable from the present case on the facts and on the relief sought therein. Briefly summarized, these cases hold: that a kitchen is not a "workshop" within the purview of the Workmen's Compensation Law (McAlester, supra; Plaza Grill, supra; Parlor, supra); that a case pending in the Industrial Court will preclude further litigation by the same claimant in the District Court until certain factual or jurisdictional questions are resolved by the Industrial Court (Rex Truck Lines, Inc., supra); and that an election by the injured party to proceed under the Workmen's Compensation Law coupled with the acceptance of an award of compensation for his injuries under the order of the Industrial Court precludes a subsequent action by the same employee to recover damages for the same injuries (H.L. Hutton Co., supra).
The mere presence or use of power-driven equipment, we conclude, did not under these facts operate to render the premises a "workshop" within the meaning of the quoted provision of the statute. Skelly Oil Company v. Waters, supra; Rider v. Bob Hiner Service Station, Okla., 321 P.2d 378; Plaza Grill v. Webster, 182 Okla. 533, 78 P.2d 818; Mobley v. Brown, supra, Hurley v. O'Brien, 192 Okla. 490, 137 P.2d 592; Southwestern Grocery Co. v. State Industrial Commission, 85 Okla. 248, 205 P. 929. Claimant relies on: Dalton Barnard Hardware Co. v. Gates, 203 Okla. 268, 220 P.2d 249 and Gates v. Weldon, 203 Okla. 488, 223 P.2d 372. The Dalton case, based on Harbour-Longmire-Pace Co. v. State Industrial Commission, 147 Okla. 207, 296 P. 456, involved a retail mercantile establishment which conducted a separate and distinct business of manufacturing or repairing goods. In the case of Gates v. Weldon the employer operated, with the use of power equipment, a separate butcher shop where meat-cutting service was extended, at a special charge to the customers who rented cold-storage lockers.
No one claims that Gates, owner of the restaurant in which the plaintiff says she sustained an injury, had elected under ORS 656.034 to contribute to the Industrial Accident Fund. The restaurant possessed a small electrically operated slicer which was used for the slicing of food items such as bread or meat; and, based largely upon that item of equipment, the plaintiff contends that operation of the restaurant was hazardous within the meaning of ORS 656.022. Until the enactment of Oregon Laws 1959, chapter 448, section 10, ORS 656.084 did not include restaurants in its category of hazardous occupations. We believe that prior to the enactment of the 1959 amendatory statute our Workmen's Compensation Act did not deem the operation of restaurants as hazardous. Hoffmanv. Broadway Hazelwood, 139 Or. 519, 10 P.2d 349, 11 P.2d 814, and Plaza Grill v. Webster, 182 Okla. 533, 78 P.2d 818. Our Workmen's Compensation Act, as enacted in 1913, contained no provision, at least none in express words, which conferred upon the defendant continuing jurisdiction over claims upon which it had taken action, and no power to make from time to time modifications or changes in its previous orders, rulings and findings.
The purpose of the equipment therein is to better effectuate and carry out the business of retail vending of meats, and whether such equipment is operated by hand or an electric motor is immaterial; so far as the nature of the business is concerned it still continues to be a retail meat market and nothing more. This was the effect of our holding in Plaza Grill v. Webster, 182 Okla. 533, 78 P.2d 818. Enid Cemetery Ass'n v. Grace, 177 Okla. 320, 59 P.2d 284; Sims v. St. Anthony Hospital, 180 Okla. 385, 69 P.2d 1040."
of whether this establishment is a "workshop" within the above-quoted statutory definition of that term. Plaintiff-appellant cites the following cases in support of his contention: In re Sikora, 57 Wyo. 57, 112 P.2d 557; Eckhardt v. Jones' Market, 105 Or. 204, 209 P. 470; Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903; Points v. Wills, 44 N.M. 31, 97 P.2d 374; Mathews v. New Mexico Light Power Co., 46 N.M. 118, 122 P.2d 410; Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263; McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867, and Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365. Defendants-appellees cite the following cases in support of their position: Koger v. A.T. Woods, Inc., 38 N.M. 241, 31 P.2d 255; Rumley v. Middle Rio Grande Conservancy Dist., 40 N.M. 183, 57 P.2d 283; Martin v. White Pine Lumber Co., 34 N.M. 483, 284 P. 115; Aranbula v. Banner Mining Co., 49 N.M. 253, 161 P.2d 867; Southwestern Grocery Co. v. State Industrial Commission, 85 Okla. 248, 205 P. 929; Plaza Grill et al. v. Webster et al., 182 Okla. 533, 78 P.2d 818; Stayman et al. v. McKellop, 165 Okla. 183, 25 P.2d 701; Berry v. Johnson, 184 Okla. 471, 87 P.2d 1082; and Hurley v. O'Brien et al., 192 Okla. 490, 137 P.2d 592. Authorities from other jurisdictions are not very helpful because in each case the question resolves itself into a construction of the language and wording of the particular statute involved in each jurisdiction. In this jurisdiction it is a question of first impression in this Court.
Defendant's contention that the kitchen and coffee shop constituted a workshop as defined by our statutes and decisions is based upon the fact that in the kitchen were a number of machines operated by power, such as a dishwashing machine, electric mixer, meat slicing machine, as well as a bread warmer. Defendant asserts that its kitchen contained much more machinery and equipment than that contained in the Plaza Grill, which was described in Plaza Grill v. Webster, 182 Okla. 533, 78 P.2d 818, or that in the butcher shop referred to in Hurley v. O'Brien, 192 Okla. 490, 137 P.2d 592, and that it was therefore a workshop, citing Mayo Hotel v. Barney, 181 Okla. 430, 74 P.2d 621, and McClung v. Colclasure, 197 Okla. 445, 172 P.2d 623. We do not agree with this contention, but think the case comes within the rule announced in Hurley v. O'Brien, supra, and Plaza Grill v. Webster, supra. Furthermore, from the evidence it appears that the waitresses while required to enter the kitchen for the purpose of obtaining butter, ice, salads and other articles of food, and of giving their orders to the chef, were not required to operate the powerdriven machinery, and did not come in contact with it. It is to be noted that the statute, 85 O.S. 1941 ยง 3[ 85-3], provided that where several classes of work are performed in a hazardous occupation, the commission shall classify such employment and the Act shall apply only to employees engaged in manual or mechanical labor of a hazardous nature.
We distinguished the case from the Harbour-Longmire-Pace case, supra, relied upon by petitioner, and stated that in that case we had the situation where a separate business was set up and being operated in connection with the retail business rather than the presence of equipment which was incidental to the real business of a retail store. What is there said applies here. See, also, Plaza Grill v. Webster, 182 Okla. 533, 78 P.2d 818; Southwestern Grocery Co. v. State Industrial Commission, 85 Okla. 248, 205 P. 929. If the meat grinder had been located in the main building of the cafe instead of the separate building, there could be no question but that the facts would bring the case squarely within the rule announced in Hurley v. O'Brien, supra, and similar cases.
The purpose of the equipment therein is to better effectuate and carry out the business of retail vending of meats, and whether such equipment is operated by hand or an electric motor is immaterial; so far as the nature of the business is concerned, it still continues to be a retail meat market and nothing more. This was the effect of our holding in Plaza Grill v. Webster, 182 Okla. 533, 78 P.2d 818; Enid Cemetery Ass'n v. Grace, 177 Okla. 320, 59 P.2d 284; Sims v. St. Anthony Hospital, 180 Okla. 385, 69 P.2d 1040."