E. D. Bedwell Coal Co. v. State Indus. Com

• Decision Date: 08 March 1932
• Docket Number: Case Number: 22216
• Citation: 157 Okla. 227,1932 OK 182,11 P.2d 527
• Parties: E. D. BEDWELL COAL CO. v. STATE INDUSTRIAL COM. et al.
• Court: Oklahoma Supreme Court

1932 OK 182

11 P.2d 527

157 Okla. 227

E. D. BEDWELL COAL CO. v. STATE INDUSTRIAL COM. et al.

Case Number: 22216

Supreme Court of Oklahoma

Decided: March 8, 1932

Syllabus

¶0 1. Joint Adventures--Characteristics.

A joint adventure is a special combination of two or more persons where, in some specific venture, a profit is jointly sought without any partnership or corporate designation. By the special agreement the parties may limit their respective profits and provide which particular part of the expenses each should bear before participation in any profits.

2. Master and Servant--Workmen's Compensation -- Finding That Respondent Coal Companies Were Joint Adventurers Sustained.

Record examined, and held: Evidence sufficient to support the finding of the State Industrial Commission.

Original action in the Supreme Court by the E. D. Bedwell Coal Company for review of order and award of the State Industrial Commission in favor of James Piper. Affirmed.

Varner & Varner, for petitioner.

Hayes, Richardson, Shartel, Gilliland & Jordan, for respondents.

RILEY, J.

¶1 Presented herein is a petition to review an award made by the State Industrial Commission in favor of respondent James Piper and against petitioner, E. D. Bedwell Coal Company. The award as made was against the White Oak Coal Company, a corporation, and the E. D. Bedwell Coal Company. The White Oak Coal Company was by the award made primarily liable, and the E. D. Bedwell Coal Company was made secondarily liable.

¶2 Respondent moves to dismiss the petition upon the ground that the White Oak Coal Company is not made a party.

¶3 The record discloses that the White Oak Coal Company did not appear at the hearing before the State Industrial Commission and in no way contested the claim for compensation. The record further shows that it paid compensation for about 16 weeks after the injury, after which it became insolvent and all its property was sold by a trustee. It carried no compensation insurance, and, therefore, can in no way be affected by this proceeding. There is no attempt to show that claimant did not suffer accidental injuries from which he became permanently totally disabled, in that he was rendered practically blind. So, if in this proceeding the award should be set aside as to the E. D. Bedwell Coal Company, the White Oak Coal Company would not be affected one way or the other. It would have nothing with which to pay the award if it be affirmed. Nothing could be gained or lost by either party by having the White Oak Coal Company made a party to this proceeding.

¶4 The only question presented by the petition to review is whether or not the E. D. Bedwell Coal Company is liable. It is not necessary to have the White Oak Coal Company before this court to determine that question. It is not a necessary party and the motion to dismiss must be and is hereby denied.

¶5 The status of claimant and his relation to petitioner arises from a somewhat complicated transaction, shown by the record substantially as follows:

¶6 The petitioner was for a number of years prior to the origin of this claim the owner of the coal mining rights in certain land in Le Flore county. Petitioner had, either by mining itself or in connection with others, built up and established a widely advertised and well-known business and market, having a certain kind of coal known as "Panama Machine Cut Boom Loaded Coal," which was produced from the lands owned or leased by it and existed in and under adjoining land. It had leased some land in which it held the coal mining rights to a company known as the Buck Creek Mining Company, which had turned over or assigned its right to Messrs. Adams & Harper, who operated a mine thereunder for a while under the name of the Upper Vein Coal Company. After some time Harper got out of the enterprise and Adams operated the mine for a time as an individual. Thereafter a Mr. Hetherington came in as a partner, and they were operating under some kind of a contract with E. D. Bedwell Coal Company, dated May 5, 1928, the terms of which are not disclosed by the record. Thereafter Adams and Hetherington incorporated the White Oak Coal Company, and with the consent of the E. D. Bedwell Coal Company, assigned their contract to the White Oak Coal Company. Sometime prior to June 14, 1928, the White Oak Coal Company acquired some coal land adjoining that upon which the Buck Creek Mine was located. On June 14, 1928, the E. D. Bedwell Coal Company and the White Oak Coal Company entered into a written contract in which the E. D. Bedwell Company is referred to as a party of the first part and the White Oak Coal Company party of the second part. The material parts of said contract are:

"Whereas, party of the first part has built up a well-known and well-advertised business and market for Panama Machine Cut Boom Loaded Coal, and whereas, it is necessary for it to have available production of coal in adequate amounts which it can sell under such designation and description, and for which it shall act as sales agent;

"And whereas, it is therefore part of its business to secure aid in, and assist financially the production of said coal by others to the end that it can act as sales agent therefor;

"Now, therefore, in consideration of the mutual covenants herein contained, to be performed by the respective parties it is agreed:

"(1) Party of the second part proposes and agrees to open at least three mines upon the following described real property located in Le Flore County, Okla., to wit: * * *

"It being the owner of the coal under said described land. It is mutually agreed that said three mines to be so opened by party of the second part shall be operated by it in connection with its present mine and which it holds under a sublease from the E. D. Bedwell Company, and which is known as the Buck Creek Mine, situated in the northwest quarter of section 19, township 8 north, range 25 east.

"It is further mutually agreed that party of the second part needs the following equipment for the proper operation of the said three mines to be opened and to further increase production of the Buck Creek Mine, to wit: * * *

"Party of the first part on its part agrees that in order to enable party of the second part to purchase such equipment, that it will indorse or sign as surety at the Merchants National Bank of Fort Smith, Ark., the promissory notes of party of the second part in an amount not exceeding $ 1,800. And party of the second part agrees that it will use the money so borrowed by it from the Merchants National Bank in purchasing such equipment.

"In order to secure party of the first part for signing said notes as indorser and for surety, including any and all renewals thereof and in order to secure any and all indebtedness which party of the second part may at any time owe to party of the first part during the time that any of said notes or renewals thereof remain unpaid, and in order to secure the performance by party of the second part of the other terms and conditions of this contract, party of the second part has concurrently herewith, and as a part and parcel of this contract, executed and delivered to party of the first part a real and chattel mortgage, copy of which is hereto attached.

"(2) Party of the second part expressly agrees for itself, its successors, lessees, sublessees and assigns, that the party of the first part, its successors or assigns, shall act as the exclusive sales agent for the coal produced from the real property above described now owned by party of the second part, and shall continue to act as such sales agent until all available coal underlying same shall have been mined out. Party of the first part shall have entire charge of all matters pertaining to sales, using its best judgment on all sales matters to promote the mutual interests of both parties; and party of the first part hereby agrees to use its best efforts to sell the coal produced by party of the second part.

"Party of the first part guarantees all accounts for sales of coal so made by it, so that the party of the second part shall not suffer any loss by reason of the party of the first part selling their coal to some unreliable person, provided that in case there is any loss by reason of allowances or credits on account of poor preparation or quality of coal, then the party of the first part shall not be responsible for any losses so occasioned.

"Party of the first part shall receive and party of the second part hereby agrees to pay to party of the first part eight per cent. (8%) of the amount that is received for all coal sold from the above described land now owned by party of the second part.

"Party of the first part shall settle with party of the second part for all coal mined and shipped in the first half of any one month on the first of the following month, and for all coal mined and shipped in the second half of any month on the 15th of the following month, deducting therefrom the 8 per cent. of the amount which they have received from the coal, as well as any other deductions permitted by this contract or that may be agreed upon by the parties from time to time.

"(3) Party of the second part agrees to produce and ship good merchantable coal, and also agrees to fill orders in compliance with instructions from the party of the first part from day to day, and to bill out the coal in conformity with its orders and routing instructions.

"(4) The party of the second part agrees to operate the three mines to be opened by it on its property, also any other mine or mines which may be hereafter opened on said property, continuously and at all times in a diligent and workmanlike manner. By continuous operation, it is meant that the party of the second part shall operate the mines on the above property each day that they have cars and orders for the coal except upon such days that there may be mine accidents, machinery break-downs, labor troubles; and, in case of such accidents,

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