(dissenting).
I am unable to agree with the majority opinion on the issue of whether claimant was engaged in hazardous employment at the time the accidental injury was sustained.
I agree with the majority’s statement that “Skelly’s business at this location was the sale of petroleum products and accessories to the public, and to sell certain services, *325such as greasing, washing, adjusting brakes and points, and fixing flats.” I am, however, unable to agree with the statement that follows to the effect that “In none of these operations were power machinery used, only simple hand tools.” A hydraulic hoist is directly used in greasing automobiles, changing the oil in motors, adjusting brakes and replacing brake linings, repacking front wheel bearings, rotating tires, replacing mufflers, replacing exhaust pipes and in inspecting the under-portion of automobiles in order to make necessary adjustments or repairs. It is patent that in using said hoist in changing oil it is directly used in selling the new oil that replaces the old and it is, of course, directly used in selling differential grease, transmission oil and chassis-greasing service. The service of greasing, changing oil, washing, inspecting and replacing mufflers (and other parts) and rotating tires unquestionably furthers the sale of gasoline, mufflers, tires and other accessories. Therefore, to my way of thinking, the fact that the hydraulic hoist is an integral part of the filling-station business conducted by Skelly at the location where claimant was injured is free from doubt. I am also of the opinion that the matter of installing mufflers, exhaust pipes, spark plugs, ignition points, and repacking wheel bearings constitutes a mechanical service in competition with garages.
I am of the further opinion that the filling-station premises constituted a “workshop” within the statutory definition of said term to the effect that “ 'workshop’ means any premises, yard, plant, room or place wherein machinery is employed and manual or mechanical labor is exercised by way of trade for gain or otherwise.” See 85 O.S.1951 § 3(11).
In Bishop v. Wilson, 147 Okl. 224, 296 P. 438, 439, this Court stated in effect that proof that the employer at the time of the injury was “running a gasoline filling station and a shop where automobile tires and tubes were repaired”; that “The filling station was a two-room building with three gasoline pumps”; that “The air came from a compressor”; that "one of the rooms was used for a repair shop”; that “The respondent (at the time of the injury) was putting air in a tire that he had repaired, the air was coming from the compressor” failed to overcome the statutory presumption that the claimant was engaged in hazardous employment at the time of injury. As pointed out in Enid Cemetery Ass’n v. Grace, 177 Okl. 320, 59 P.2d 284, 285, positive testimony “renders inapplicable the rule relative to presumption” and it follows that if the above quoted facts in the Bishop case had served to establish that the claimant in that case was not engaged in hazardous employment, said facts would have overcome the statutory presumption that is referred to in said case.
In Southland Refining Co. v. State Industrial Commission, 167 Okl. 3, 27 P.2d 827, the claimant who was employed in a filling station was denied recovery under these facts:
“ * * * The station where the claimant worked consists of one small room and two toilet rooms. There are three oil containers for lubricating oil in the front room. There are two gasoline tanks under the ground. The claimant had nothing to do with the placing of gasoline in tanks or the delivery of the oil containers to the station. Nothing is sold in the station except gas, oil, and transmission grease. No repair work is done at the station, and no cars are greased there. There are two gasoline pumps on the driveway from which gasoline is pumped into cars. One of those pumps is a hand pump, and the other one is controlled by compressed air. There is a compressor which compresses the air into a compressed air chamber. It is automatically operated. If it gets out of order, the company sends a man to service it. The claimant has nothing to do with it except to drop some oil on it occasionally. * * *” (Emphasis supplied.)
*326In distinguishing the Southland Refining Co. case from the Bishop case this was said:
“ * * * The facts therein were different from the facts in this case. In that case there was a separate room or shop where automobile tubes and tires were repaired and where more than one person was employed. A tire that the claimant therein had repaired blew out while he was putting air into it and blew a small object into his eye. There was nothing therein to show that the place was not a workshop where machinery was used. * * * »
In the instant case the claimant operated the hydraulic hoist and assisted in performing all other manual tasks that were performed at the station. The fact that he was not engaged in operating the hoist at the time of his injury is without significance. Wilson & Co., Inc., of Oklahoma v. Musgrave, 180 Okl. 246, 68 P.2d 846, and Oklahoma Natural Gas Co. v. Nickens, 199 Okl. 622, 189 P.2d 184.
The only evidence in Rider v. Bob Hiner Service Station, Okl., 321 P.2d 378, that would tend to show that the filling station was a workshop was evidence that the gasoline pumps were operated by electrically driven machinery, which evidence was held insufficient to establish that the filling station was a “workshop” within the purview of the applicable statute. The facts of the cited case serve to distinguish the case from this case.
I will refer to a few of the many cases that I believe sustain the Industrial Commission’s finding in the instant case that claimant was engaged in hazardous employment. In Folsom Auto Supply v. Bristow, Old., 275 P.2d 706, 710, the claimant “was engaged in performing work in connection with the repair- of automobile bodies and fenders at the time he sustained the injury; that the shop in which he was working was equipped with electric driven machinery and a large [air] compressor which he used in connection with his work.” The injury occurred “while (claimant) was pushing a car out of the driveway entering into the auto supply shop”. The claimant was held to be engaged in hazardous employment at the time of the injury. In Dalton Barnard Hardware Co. v. Gates, 203 Okl. 268, 220 P.2d 249, 252, it is stated that the evidence in that case showed “that claimant was a saleslady in the store; that she also had charge of the branch of the business which fabricated draperies and made and fitted slip covers to furniture. The making of slip covers was not confined solely to the making of such covers for furniture owned by the store, but slip covers were also made for furniture sent to the store for that purpose by customers. In the process of making slip covers and draperies a power driven sewing machine was used, and the work of making slip covers and draperies was done principally by claimant with the assistance of another employee.” The claimant who was injured while fitting a slip cover upon a chair, was held, because of the presence of the power driven sewing machines, to have been engaged in hazardous employment at time of injury. To same effect see Harbour-Longmire-Pace Co. v. State Industrial Commission, 147 Okl. 207, 296 P. 456. See also Halliburton Oil Well Cementing Co. v. State Industrial Comm., Okl., 330 P.2d 222 and Board of County Commissioners of Tulsa County v. Horne, Okl., 288 P.2d 406.
In the instant case the hydraulic hoist was an integral part of the filling-station business and was not merely incidental thereto. The use made of the hoist, which use included repair work on automobiles such as replacing manifolds and exhaust pipes, and the many manual tasks performed at the station which could lead to injuries, causes me to conclude that the filling-station “premises” at the time of the accident in controversy constituted a “workshop” within the statutory definition of said word. To my way of thinking, the instant case is readily distinguishable from the “grocery store cases” that the majority appears to believe decisive of this case.
*327Here claimant was engaged in mechanical work (work similar to that done in garages) as well as non-mechanical work (selling gasoline, oil and greases), while in the grocery store case the claimants were engaged in non-mechanical work.
I am authorized to state that Justices BLACKBIRD and IRWIN concur in the foregoing dissenting view.