Dolese Bros. v. Tollett

• Decision Date: 28 February 1933
• Docket Number: 22611.
• Parties: DOLESE BROS. v. TOLLETT.
• Court: Oklahoma Supreme Court

19 P.2d 570

162 Okla. 158, 1933 OK 141

DOLESE BROS. v. TOLLETT.

No. 22611.

Supreme Court of Oklahoma

February 28, 1933

Syllabus by the Court.

1. A trial court is required to determine the legal question as to whether or not it has jurisdiction of the subject-matter of an action presented to it for determination, and it is neither authorized nor required to submit to a jury the question of whether or not it has jurisdiction of the subject-matter thereof.

2. Where A employs B as a laborer and contracts with C to furnish material, and C employs D as a truck driver for the purpose of delivering the material so contracted, and B is injured by the negligence of D, B and D are not in the same employ within the provisions of section 13368, O. S. 1931 (section 7302, C. O. S. 1921), and B may maintain an action against C under the provisions of that section.

Appeal from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by James H. Tollett against Dolese Bros., a corporation. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

J. Fred Swanson, Owen & Looney, and Paul Lindsey, all of Oklahoma City, for plaintiff in error.

William F. Smith, of Oklahoma City, for defendant in error.

ANDREWS Justice.

This is an appeal by the defendant from a judgment of the district court of Oklahoma county in favor of the plaintiff in that court. The action was one to recover a money judgment for damages sustained from a personal injury.

The defendant contends herein that the district court did not have jurisdiction of the subject-matter of the action, and bases that contention on an assertion that the jurisdiction of the action was in the State Industrial Commission.

The evidence discloses that Campbell & Price had contracted with the owner of the Skirvin Hotel in Oklahoma City to construct an addition to that building; that H. H. Enders had contracted with them to furnish the material and labor necessary for the plastering of that addition; that H. H Enders had employed the plaintiff as one of those laborers that the plaintiff was injured; that the injury arose out of and in the course of his employment with H. H. Enders; and that the injury was within the scope of the Workmen's Compensation Act (O. S. 1931, § 13348 et seq.).

The evidence further discloses that the defendant had contracted with H. H. Enders to furnish the sand necessary for the plastering of the addition; that the defendant had in its employ a certain truck driver; that that truck driver was delivering a load of sand for the defendant to H. H. Enders on the Skirvin Hotel property for use in plastering the addition; that he started the truck in such a manner as to cause a steel door on the end of the truck to fall; that the plaintiff's hand was caught between the body of the truck and the door; that an injury was sustained by the plaintiff that the truck was not under the control, supervision, or direction of H. H. Enders; that the truck was under the control of the defendant and its employee, the truck driver; and that the plaintiff was not in the employ of the defendant or of any subcontractor of the defendant.

The defendant contends that the plaintiff and the defendant were in the same employment within the meaning of section 13368, O. S. 1931 (section 7302, C. O. S. 1921), which provides as follows: "If a workman entitled to compensation under this Act be injured by the negligence or wrong of another not in the same employ, such injured workman shall, before any suit or claim under this Act, elect whether to take compensation under this Act, or to pursue his remedy against such other; * * *" that the trial court erred in refusing to so hold; and that the trial court erred in refusing to submit to the jury the question as to whether or not they were in the same employment.

A trial court is required to determine the legal question of whether or not it has jurisdiction of the subject-matter of an action presented to it for determination. If it does not have jurisdiction of the subject-matter of the...