Colvin v. Chapman

• Citation: 122 P.2d 158,190 Okla. 214,1942 OK 65
• Decision Date: 10 February 1942
• Docket Number: 30448.
• Parties: COLVIN et al. v. CHAPMAN et al.
• Court: Oklahoma Supreme Court

122 P.2d 158

190 Okla. 214, 1942 OK 65

COLVIN et al. v. CHAPMAN et al.

No. 30448.

Supreme Court of Oklahoma

February 10, 1942

Syllabus by the Court.

The jurisdiction of the State Industrial Commission to award compensation is limited to cases where the relation of master and servant exists and where the employment is one which is subject to and covered by the provisions of the Workmen's Compensation Act, O.S.1931, section 13348 et seq., as amended, 85 Okl.St.Ann. § 1 et seq.

Original proceeding in the Supreme Court by K. L. Colvin, alleged employer, and the National Mutual Casualty Company, her insurance carrier, to obtain a review of an award made by the trial commissioner and affirmed by the State Industrial Commission in favor of Art Chapman, alleged employee.

Award vacated with directions.

Everett Petry and E. LeRoy Allen, both of Tulsa, for petitioners.

G. B Coryell, of Bristow, and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

This is an original proceeding in this court brought by K. L. Colvin hereinafter referred to as petitioner, and her insurance carrier, to obtain a review of an award which was made by trial commissioner, which on appeal was affirmed by the State Industrial Commission, in favor of Art Chapman, hereinafter referred to as respondent.

The facts are not in dispute. On April 1, 1940, the respondent sustained an accidental personal injury in the form of a broken leg as the result of assistance which he had volunteered to employees of the petitioner in separating two joints of casing. The injury and extent thereof are not in issue here. On March 13, 1941, respondent filed with the State Industrial Commission an employee's first notice of injury and claim for compensation. The petitioner denied liability and at the hearing to determine that issue contended that respondent was not in her employ but on the contrary was an independent contractor engaged in a business which was neither subject to nor covered by the provisions of the Workmen's Compensation Act, O.S.1931, section 13348 et seq., as amended, 85 Okl.St.Ann. § 1 et seq.

The trial commissioner as a result of said hearing found, in substance, that respondent was an employee of the petitioner and engaged in a hazardous employment at the time of his injury and awarded compensation for temporary total disability and reserved for future consideration the determination of whether the injury had resulted in any permanent disability.

The petitioner contends here, as she did before the State Industrial Commission, that the relation between the parties was not that of employer and employee, but was rather that of principal and independent contractor and that respondent was not engaged in a compensable employment when he sustained his injury.

The contentions so made present jurisdictional questions upon which the finding of the State Industrial Commission will not be accepted as conclusive. Burrows v. State Industrial Commission, 188 Okl. 523, 111 P.2d 175; McKeever Drilling Co. v. Egbert, 170 Okl. 259, 40 P.2d 32.

The first prerequisite to any award made by the State Industrial Commission is the relation of master and servant or employer and employee. Mastin v. Black, 176 Okl. 46, 54 P.2d 399; Trustees of Masonic Lodge of Elk City v. Smith, 161 Okl. 200, 17 P.2d 430. It is no less essential, however that the employment be one of those enumerated in and defined as hazardous by the Act. Veazey Drug Co. v. Bruza, 169 Okl. 418, 37 P.2d 294.

The respondent admits that he was engaged in business as a class B motor carrier, and his evidence, which was the sole evidence before the Commission, shows conclusively that he was employed to perform a service incident to the business in which he was engaged and that his injury occurred, not by reason of anything that he was doing in his particular employment, but by reason of the fact that he volunteered to assist some roustabouts of the petitioner to separate two joints of casing so as to facilitate the loading of the casing on the truck of the respondent. In so doing the respondent was not engaged in the performance of any...