Commercial Lumber Co. v. Nelson

• Decision Date: 26 October 1937
• Docket Number: 27775.
• Citation: 72 P.2d 829,181 Okla. 122,1937 OK 607
• Parties: COMMERCIAL LUMBER CO. et al. v. NELSON et al.
• Court: Oklahoma Supreme Court

72 P.2d 829

181 Okla. 122, 1937 OK 607

COMMERCIAL LUMBER CO. et al. v. NELSON et al.

No. 27775.

Supreme Court of Oklahoma

October 26, 1937

Syllabus by the Court.

1. A joint adventure is a special combination of two or more persons where in some specific venture a profit is jointly sought without any actual partnership or corporate designation.

2. The guarantee of the faithful performance of a builder's contract by a lumber company without any participation in a building venture other than to sell the builder his materials and supplies does not create a joint adventure between the lumber company and said builder.

3. When a finding of the State Industrial Commission is without the support of any competent evidence an award based upon such finding will be vacated by this court as a matter of law.

Proceeding under the Workmen's Compenation Act by George W. Nelson claimant, opposed by the Commercial Lumber Company, alleged employer, and the Maryland Casualty Company, insurance carrier. To review an order of the State Industrial Commission granting an award, the alleged employer and insurance carrier bring original proceeding in the Supreme Court for review.

Award vacated.

Pierce & Rucker and Fred M. Mock, all of Oklahoma City, for petitioners.

Jameson Gray & McMahon and O. C. Essman, all of Tulsa, and Mac Q Williamson, Atty. Gen., for respondents.

PER CURIAM.

This is an original proceeding in this court to obtain a review of an award made by the State Industrial Commission in favor of George W. Nelson and against the petitioner Commercial Lumber Company and its insurance carrier. The award as made was against John Lindley, Claude L. McKinney, Commercial Lumber Company, and its insurance carrier, Maryland Casualty Company. The award made John Lindley primarily liable and Claude L. McKinney and Commercial Lumber Company and its insurance carrier secondarily liable. The petitioners challenge the award only in so far as it attempts to hold them secondarily liable to the respondent. The facts as shown by the record will be briefly stated. Claude L. McKinney entered into a contract with one O. Smulian whereby the former agreed to construct a residence for the latter free of any liens and claims, for an agreed to consideration of $6,000. The Commercial Lumber Company guaranteed the faithful performance of said contract. John Lindley entered into a contract with McKinney to do the paint work on the house and the respondent, an employee of Lindley, sustained an accidental personal injury while engaged in painting the house under the subcontract Neither McKinney nor Lindley carried compensation insurance. The Industrial Commission found that Smulian was not liable to the respondent and thereupon proceeded to further find that the contract of the Commercial Lumber Company whereby it guaranteed the performance of McKinney's contract with Smulian constituted the lumber company a joint adventurer with McKinney and liable to the respondent as such, and incidentally, also held that the insurance carrier of the lumber company was liable. Petitioners for the vacation of said award, in so far as it affects them, contend, in substance, that the finding of a joint adventure between McKinney and the lumber company is without the support of any competent evidence and that the Industrial Commission was without jurisdiction to enter an award against the lumber company's insurance carrier. If the first contention advanced is well taken then the latter needs no...