Beall v. Altus Public School Dist.

• Decision Date: 28 July 1981
• Docket Number: No. 55023,55023
• Citation: 1981 OK 93,632 P.2d 400
• Parties: Alvin G. BEALL, III, Petitioner, v. ALTUS PUBLIC SCHOOL DISTRICT, Jack Davis, St. Paul Insurance Company, Truck Insurance Exchange, Farmers Insurance Group, and Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

Page 400

632 P.2d 400

1981 OK 93

Alvin G. BEALL, III, Petitioner, v. ALTUS PUBLIC SCHOOL DISTRICT, Jack Davis, St. Paul Insurance Company, Truck Insurance Exchange, Farmers Insurance Group, and Workers' Compensation Court, Respondents.

No. 55023.

Supreme Court of Oklahoma.

July 28, 1981.

OPINION OF COURT OF APPEALS, DIVISION 2, VACATED ORDER OF

WORKERS' COMPENSATION COURT EN BANC AFFIRMED.

J. Mike Lawter, Manners, Cathcart & Lawter, Oklahoma City, for petitioner.

John A. McCaleb, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for respondents, Altus Public School District and St. Paul Ins. Co.

H. A. Bud Carter, Oklahoma City, for respondents, Truck Ins. Exchange and/or Farmers Ins.

B. E. Harkey, Oklahoma City, for respondent, Jack Davis.

LAVENDER, Justice:

Alvin G. Beall III, petitioner, filed a claim in the Workers' Compensation Court seeking benefits for an injury received on October 10, 1977, while working on a house construction project for his high school carpentry shop class. Respondents defended this claim on the grounds that petitioner was not an employee at the time of the accident, therefore he was not entitled to worker's compensation. Order was entered finding petitioner was not working for "wages" (paid by either respondent) as required by 85 O.S.1971 § 3(3) and defined in 85 O.S.1971 § 3(8), therefore petitioner was not an employee of either; that respondent Davis was not an employer for the additional reason that he exercised no control or direction over the petitioner; denying the claim.

On appeal to the Workers' Compensation Court en banc, the order was affirmed. Petitioner perfected appeal to this Court, the cause was assigned to the Court of Appeals, Division 2. There, the order was reversed and remanded. The Court of Appeals found that petitioner was an employee on the basis that wages are not essential to be an employee and finding petitioner to be an employee of both respondents on the basis that the house project was a joint venture. Rehearing was denied by the Court of Appeals, January 7, 1981. Respondent sought writ of certiorari which was previously granted.

When the existence of the employer-employee relationship is an issue before the Workers' Compensation Court, a jurisdictional question is presented and the Supreme Court on review will not accept findings of that court as conclusive, but will weigh evidence contained in the record and independently evaluate law and facts to determine the existence or absence of the relationship. Matter of Worcester, 576 P.2d 1168 (Okl.1978); Herron Lumber Co. v. Horn, 446 P.2d 53 (Okl.1968), and Hillcrest Hospital v. State Industrial Court, 452 P.2d 781 (Okl.1969).

The evidence shows that the setting leading to this controversy is not in dispute.

Petitioner was a 15 year old high school sophomore at Altus High School, hereinafter Altus. He was enrolled in the carpentry shop class. Mr. Killebrew, shop teacher for respondent Altus, approached respondent Mr. Davis to sponsor a house construction project, hereinafter the project, for the carpentry class, as had been done in prior years by other sponsors. Mr. Davis was not a house builder but agreed to sponsor the project for the 1977-1978 school year. According to that agreement, Davis was to buy a lot picked by Killebrew, pay for all materials used to build the house, all of which Killebrew ordered, and to pay Altus one dollar ($1.00) per square foot upon completion of the house. This sum, according to testimony by Killebrew, was for maintenance, repairs, and replacement of shop tools. The agreement also provided "one of the functions of this class is to give the students training in the actual construction of residences; and whereas, the activities of this class are purely educational in nature ...." Davis, upon completion of the house, could then sell it. The record does not indicate whether Davis made a profit on the sale but does indicate that he had no control of any of the work done on the project or anyone working on it. His only connection with the project while it was under construction was to meet at various times with Killebrew to discuss payment of bills for materials.

Petitioner, while working on the project and in performing a task under the direction of Killebrew, was permanently injured in his right eye by a nail bouncing back after being struck by petitioner's hammer. This injury occurred on October 10, 1977.

Petitioner contends that there existed an employer-employee relationship between respondent Altus and himself based on the proposition that Killebrew, the shop teacher, maintained control and superintendence over petitioner while working on the project, citing Clark v. First Baptist Church, 570 P.2d 327 (Okl.1977). The Court in Clark, in stating that the determinative test used to establish an employer-employee relationship is whether control and superintendence was exercised over the claimant, was determining whether the worker in the fact situation presented to them was an employee or independent contractor. Also, the cited case affirmed Industrial Court order refusing to find existence of a contract for wages based on credit to church members' tithing for services performed for the church. We fail to see how this case is helpful to petitioner here.

Petitioner admits that before the benefits under the Worker's Compensation Act are available to him he must establish a contract of employment between himself and one or both of the respondents. In Landrum v. Ownby, 290 P.2d 400 (Okl.1955), we stated:

The relation of employer and employee is a first prerequisite to any award under the compensation act, and such relation is created by contract, either express or implied, or by the unequivocal acts of the parties recognizing the relationship.

See also McCowan v. Ford, 495 P.2d 1283 (Okl.1972); Smith's Estate v. Hearon, 424 P.2d 970 (Okl.1967); Mahl v. McMahan, 325 P.2d 78 (Okl.1958); El Reno Broom Co. v. Roberts, 138 Okl. 235, 281 P. 273 (1929); Moore & Gleason v. Taylor, 97 Okl. 193, 223 P. 611 (1924); Landrum v. Ownby, supra. Petitioner contends a contract of employment was implied between petitioner and respondents Altus and Davis because the latter profited on the project. We find no authority for the proposition that the making of a profit on a project by someone necessarily creates an implied contract of employment between the latter and one who has worked on the project.

We have stated that "for the workmen's compensation law, the contract must be to labor for agreed 'wages,' as that term is defined in that law." Parten v. State Industrial Court, 496 P.2d 114 (Okl.1972). In the case at bar, the Workers' Compensation Court found that claimant was not working for "wages" as defined in 85 O.S.1971 § 3(8). We sustain that finding for reasons stated below.

According to A. Larson, Workers' Compensation Law, § 47.40 et seq.:

The word "hire" (in contract for hire) connotes payment of some kind. (C) ompensation decisions uniformly exclude from the definition of "employee" workers who neither receive nor expect to receive any kind of pay for their services.

Further, he states:

Although ... the performance and acceptance of valuable service normally raises an implication that payment for the services is expected, this implication does not arise when the circumstances negative such an expectation.

Larson then lists gratuitous workers who are working to advance their own interests among such circumstances. In the case at bar, petitioner was advancing his own interests in working on the project by perfecting his carpentry skills. In any event, a review of the record indicates that petitioner did not expect to receive any kind of pay for working on the project. This does not eliminate the issue, however.

Larson, further in his treatise, states:

The element of payment, to satisfy the requirement of a contract for hire, need not be in money, but may be in anything of value. § 47.43(a) at 8-285.

He then cites cases where training received by a student has been considered by some courts to be the equivalent of wages. There are also contra cases cited therein. This court was confronted with such an issue in Hillcrest Hospital v. State Industrial Court, 452 P.2d 781 (Okl.1969). In that case, the claimant, a student nurse, as a part of her training, was selected by a supervisor to deliver a lecture to a class of student nurses. While she was on her way to the classroom to perform this service (one of obvious benefit to the nursing school as well as to the student/claimant), she fell on some stairs and suffered an injury. This court, in vacating her award, found that there was no evidence that a contract of employment was consummated between the claimant and the hospital. We also rejected claimant's contention that her board and room rate at the hospital, being less than what similar quarters elsewhere would cost, was a form of compensation.

In our view, the Hillcrest case is analogous. There is no evidence that a contract for hire, express or implied, existed between petitioner and either respondent. There is also no evidence that petitioner received wages as defined in 85 O.S.1971 § 3(8). Since a contract for hire is an essential element to the creation of an employer-employee relationship, it follows that in the absence of such contract, the Workmen's Compensation Act is not applicable. Although the Workmen's Compensation Act is construed liberally in favor of those entitled to its benefits, a claimant must be held to strict proof that he is in a class embraced with the provisions of the Act. Kelly v. Risenhoover, 470 P.2d 334 (Okl.1970); Hillcrest Hospital v. State Industrial Court, supra, Mid-Continent Cas. Co. v. Miller, 451 P.2d 932 (Okl.1968); Marr v. American Flyers Airline Corp., 443 P.2d 961 (Okl.1968). Upon review of the record in the case at bar, we find that petitioner did not prove he was in the class embraced by the Workmen's Compensation Act.

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