Aycox v. Pepsi Cola Bottling Co.
| Decision Date | 30 September 1958 |
| Docket Number | No. 38199,38199 |
| Citation | 331 P.2d 367 |
| Parties | Marion AYCOX, Administrator, Petitioner, v. PEPSI COLA BOTTLING COMPANY, Security Insurance Company of New Haven and State Industrial Commission of the State of Oklahoma, Respondents. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The liability of a principal employer under the terms of the Workmen's Compensation Law, 85 O.S.1951 Sec. 11, for injury and disability arising to an employee of an independent contractor depends on whether the work done by the employee of the independent contractor is incident to and connected with the industry or occupation of the principal employer.
2. Evidence examined and held to support the finding of the State Industrial Commission that the work of the employee of the independent contractor was not incident to and connected with the industry or occupation of the principal employer.
Original proceeding brought by Marion Aycox, administrator. Petitioner to review an order of the State Industrial Commission denying an award against the Pepsi Cola Bottling Company in a proceeding against it and another. From the order denying the award against the named company claimant appeals. Order sustained.
Alvin C. Bruce, Ardmore, for petitioner.
Fenton & Fenton, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.
Marion Aycox, as claimant, brought this proceeding in the State Industrial Commission to obtain an award under the death benefit provisions of the Workmen's Compensation Law, 85 O.S.1951 Section 1 et seq., by reason of the death of Edwin Earl Strimple, hereinafter called employee, who was killed in the operation of a truck owned by George Lemmons operating as the Lemmons Trucking Company, hereinafter called employer. The State Industrial Commission entered an award for the full amount of $13,500 for the benefit of Viola Strimple, widow of the employee, and her children but denied an award of secondary liability against the Pepsi Cola Bottling Company and its insurance carrier. This proceeding is brought to review the award insofar as it denies liability against the Pepsi Cola Bottling Company and its insurance carrier.
The record discloses that Pepsi Cola Bottling Company is engaged in the manufacture and distribution of soft drinks. On the 17th day of September, 1956, it contracted with George Lemmons, operator of the Lemmons Trucking Company, to ship by truck, a liquid filler weighing ten thousand pounds; a liquid mixer weighing two thousand pounds and a liquid crowner weighing two thousand pounds. Employer was not insured. Employee had loaded this equipment on employer's truck and in his preparation toward moving the same was crushed by the truck and died soon thereafter.
The sole issue is the alleged error of the State Industrial Commission in denying an award against the Pepsi Cola Bottling Company and its insurance carrier under the provisions of 85 O.S.1951 Section 11, which is in part as follows:
* * *'
We have held that a principal employer under section 11, supra, is not liable to an injured employee of...
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