Flowers v. Hill

• Decision Date: 28 September 1926
• Docket Number: Case Number: 16841
• Parties: FLOWERS et al. v. HILL et al.
• Court: Oklahoma Supreme Court

1926 OK 758

249 P. 704

119 Okla. 275

FLOWERS et al. v. HILL et al.

Case Number: 16841

Supreme Court of Oklahoma

Decided: September 28, 1926

Syllabus

¶0 1. Master and Servant--Workmen's Compensation Law--Questions of Fact--Existence of Partnership. Where a claim is filed by a workman under the Workmen's Compensation Laws of this state and a hearing had before the State Industrial Commission, and the question whether a partnership exists is a matter of doubt, to be decided by inferences to be drawn from all the evidence, it is one of fact for the Industrial Commission to determine.

2. Partnership--Existence of Relation--Proof. A prima facie case of partnership is made out against persons associated in a particular business by evidence that they share in its profits pursuant to an agreement between them; by evidence that they have described themselves as partners; or by evidence that they are common proprietors of the business conducted for their mutual profit.

3. Master and Servant -- Workmen's Compensation Law--Appeal--Finality of Decision Below on Facts.

By the provisions of section 10, art. 2, of the Workmen's Compensation Law (chapter 246, Session Laws 1915), the decision of the State Industrial Commission is made final as to all questions of fact, and on appeal to this court from an award of the Industrial Commission or an order made upon a question of fact, this court is without jurisdiction to weigh the evidence for the purpose of determining whether the same preponderates in favor of or against the findings of fact made by the Industrial Commission.

4. Same -- Continuing Jurisdiction of Industrial Commission to Modify Orders. The jurisdiction of the Industrial Commission to modify or change its previous findings or orders is not determined solely by section 12, art. 2, of the Workmen's Compensation Law, relating to "a change of conditions," but its jurisdiction under chapter 246, Sess. Laws 1915, is continuing, and the Commission may, from time to time, make such modification or change of its former findings or orders relating thereto as, in its opinion, may be just.

Carlile & Wall, for complainants.

Rittenhouse & Rittenhouse, J. Fred Swanson, Geo. F. Short, Atty. Gen., and Fred Hanson, Asst. Atty. Gen., for respondents.

RUTH, C.

¶1 This is an original action in this court to review an order made by the State Industrial Commission of Oklahoma, wherein the U.S. Fidelity & Guaranty Company were absolved from liability. A. P. Flowers filed his claim before the State Industrial Commission, claiming compensation for injuries received while in the employ of Hill & Williams and while working on a schoolhouse in Gore, Sequoyah county, Okla. Upon hearing had, compensation was awarded the claimant against C. L. Hill, A. R. Williams, and the U.S. Fidelity & Guaranty Company, and within 30 days after the award so made, the Industrial Commission made an order, after petition for review filed, in which the U.S. Fidelity & Guaranty Company, was absolved from liability, and the claimant files his action in this court to review said order, and assigns as reasons for review as follows:

"(1) The said Commission erred in holding that there was a partnership agreement existing between C. L. Hill and A. R. Williams, and that they as copartners were the employers of the claimant at the time of the injury."

"(2) That the Commission erred in holding that the said U.S. Fidelity & Guaranty Company was not liable as the insurance carrier of C. L. Hill for the reason that C. L. Hill was individually liable for any injury to the claimant, and C. L. Hill carried individual insurance for all employees of his engaged in building and contract work as shown by the evidence in this cause."

¶2 The evidence first shows that C. L. Hill was on a certain building an individual contractor, but on the schoolhouse in school district No. 28, C. L. Hill and A. R. Williams were awarded the contract for the erection of a schoolhouse at Gore, Okla., and the contract was entered into by the school board of district No. 28, with Hill and Williams, and it was while in the construction of this building that the claimant was injured. The evidence further shows that C. L. Hill carried employer's liability as an individual contractor, but not as a member of the firm of Hill & Williams, and not covering any work done by Hill & Williams, and especially on the men employed in building the schoolhouse on which the claimant was injured.

¶3 In his brief claimant contends that the existence of a partnership was a question of law to be determined by the court, and therefore the order of the court determining there was no partnership between Hill & Williams is properly reviewable by this court. The evidence clearly showed that the contract for this particular building was taken in the name of Hill & Williams; that the bank account for the construction of this building was carried in the name of Hill & Williams; and that Williams was in charge of the work, and Williams signed all checks for the construction of the schoolhouse at Gore in the following manner: "Hill & Williams by A. R. Williams"; and that C. L. Hill was, during the time of the construction of this particular schoolhouse, engaged in work in another part of the state, and upon contract taken in his own individual name, and that be carried indemnity insurance in his individual name for his individual employees, and that claimant was not an individual employee of C. L. Hill.

¶4 The claimant is in error in assuming that the question of partnership is a question of law. In Cobb v. Martin et al., 32 Okla. 588, 123 P. 422, this court said:

"1. Partnership--Existence of Relation--Question of Fact. When the question whether a partnership exists is a matter of doubt, to be decided by inferences to be drawn from all the evidence, it is one of fact for the jury; and the court should not nonsuit or direct the jury to find a verdict for the plaintiff or defendant.

"2. Evidence--Presumption--Continuance of Relation. Where it is shown that a partnership at one time existed, it will be presumed to continue in the absence of testimony to the contrary.

"6. Same--Existence of Relation--Evidence--Admissions. Parties who have admitted that they are in partnership, either by express statements or by conduct, will be held to that admission.

"7. Same. A prima facie case of partnership is made out against persons associated in a particular business by evidence that they share in its profits, pursuant to an agreement between them, by evidence that they have described themselves as partners in any writing, or by evidence that they are the common proprietors of the business conducted for their mutual profit.

"8. Same--Presumption. A presumption of partnership arises from the use of a name such as is commonly employed when a partnership exists."

See, also, Hoteling v. McCarty, 46 Okla. 541, 149 P. 142; Moning Dry Goods Co. v. Wiseman et al., 60 Okla. 94, 159 P. 259; Harmon...