Fox v. Dunning
| Citation | 255 P. 582,124 Okla. 228,1927 OK 79 |
| Decision Date | 29 March 1927 |
| Docket Number | 17075. |
| Parties | FOX et al. v. DUNNING et al. |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court.
In determining whether the relation between a principal contractor and another engaged in work on the subject-matter of the contract is that of master and servant or an independent contractor, the test is whether the principal contractor reserves the power to control the latter.
Where the contract is oral and there is no material dispute as to its terms and but one inference can be drawn from the evidence, then the question of whether the relation is that of employer and independent contractor, or that of master and servant, is for the court.
Under section 7285, Compiled Oklahoma Statutes 1921, where a principal contractor provides compensation, by securing a workman's compensation policy to be taken out by an intermediate or subcontractor insuring the employee of the latter under the act, the compensation so secured is exclusive, protecting the principal contractor from actions to recover for personal injuries received, growing out of and in the course of employment; and to an employee of such intermediate or subcontractor by the principal's employee's negligence.
Subrogation is allowed only in favor of one who under some duty or compulsion, legal or moral, pays the debt of another, and not in favor of him who pays a debt in performance of his own covenants.
The purpose of the Workmen's Compensation Act (Comp. St 1921, § 7282 et seq.) is to make the industry prosecuted, if hazardous, bear the burden of human wreckage incident to its operation, and by reason of it certain rights of action vouchsafed at common law are abolished and a theory of compensation substituted therefor.
Section 7302, Compiled Oklahoma Statutes 1921, relating to damage to a workman by an outsider or another not in the same employ does not apply nor provide for an assignment of a cause of action against the principal contractor, when the immediate employer is a subcontractor or intermediate contractor.
The amendment to the Workmen's Compensation Act of 1919 (Laws 1919, c. 14) is not unconstitutional as being violative of section 57, article 5, Constitution of Oklahoma, for the subject-matter of the amendment is sufficiently embraced in the title of the act.
The amendment of 1919 (Laws 1919, c. 14) is not violative (a) of section 6, article 2, of the Constitution; (b) nor of section 7, article 2, of the Constitution, providing, "No person shall be deprived of life, liberty, or property, without due process of law"; (c) nor is the amendment a special law as contemplated by section 32, article 5, of the Constitution, and lack of uniformity in its operation is not shown.
Additional Syllabus by Editorial Staff.
"Subcontractor" is one taking portion of contract from principal contractor one obligated to produce agreed result (citing Words and Phrases, First and Second Series, "Subcontractor").
Appeal from District Court, Oklahoma County; William H. Zwick, Judge.
Action by Calvin Thomas Fox against Charles M. Dunning and another for personal injuries, in which the Standard Accident Insurance Company intervened. From a judgment for defendants, plaintiff and the intervener appeal. Affirmed.
J. Z. Werby and Twyford & Smith, all of Oklahoma City, for plaintiffs in error.
Ross & Thurman, of Oklahoma City, for defendants in error.
This is an appeal from the district court of Oklahoma county. Plaintiff below was Fox, the injured employee. Defendant below was the Dunning Construction Company, a copartnership and general contractors, engaged on April 9, 1923, when this cause of action arose, in the construction of the Braniff building, in Oklahoma City. Cotner & Patrick were doing certain concrete work on the floors of the said building, and Fox, the injured workman, was employed by the last-named firm. Intervener, the Standard Accident Insurance Company, was the insurance carrier, under the Workmen's Compensation Act (Comp. St. 1921, § 7282 et seq.), for Cotner & Patrick. The intervener set out in its petition that they had paid $1,630.11 to the injured employee, Fox, and they acknowledge their liability to him in the sum of $8,669,45, which amount is being paid by them through the State Industrial Commission. The intervener claims the right of subrogation, to the amount of their liability, to the cause of action of plaintiff Fox.
On the above-named date Fox was working on the eighth floor of the Braniff building unloading material from an elevator or hoisting apparatus. The elevator was operated by the Dunning Construction Company. Fox went upon the elevator and the cables suspending it broke, causing him to fall to the basement and to sustain serious and permanent injuries and a total disability. Fox pleaded and proved a defect in the apparatus, to wit, the cable used on the hoist, in the splicing and lack of inspection thereof.
The cause was tried to a jury. At the close of the testimony the court sustained the motion of defendant and directed a verdict in favor of defendant Dunning Construction Company and against the plaintiff and intervener, which verdict was accordingly rendered, and from which in due course this appeal was perfected.
The question of the contractual relation of the injured employee, Fox, is of prime importance here. We therefore look to the exact status of Fox as to his employment with Cotner & Patrick, and as to the Dunning Construction Company. His services were engaged by Cotner & Patrick. Another employee was working with him who was likewise engaged. Likewise, another named Duncan mixed mortar for Cotner & Patrick in the work on the eighth floor, constituting three employees there. An engineer, known as Bill, operated the hoist. He was employed by the Dunning Construction Company, and he received signals regulating the elevator from the concrete men of Cotner & Patrick. The Dunning Construction Company were the general contractors in that they had contracted to do all of the work in building except plumbing and heating. Cotner & Patrick were employed by the general contractors to work on the cement floors. They were paid by the square foot. They had no agreement to do a certain amount of work, but they were to continue as long as satisfactory. Sometimes the Dunning Construction Company provided extra men, and the Dunning Construction Company exercised the right to discharge the employees of Cotner & Patrick. The latter's work was done according to the directions of Dunning Construction Company's superintendent, and he superintended the construction of the floors and of all of Cotner & Patrick's work. The Dunning Construction Company furnished all materials and machinery used; they financed Cotner & Patrick's payroll, and suggested and secured Cotner & Patrick to procure workmen's compensation insurance for the latter's employees indemnifying against loss by accidental injury. The Dunning Company provided workmen's compensation insurance for their own employees. The testimony revealed that the Dunning Company, by its agents and employees, spliced the hoist cable by the use of clamps. By the testimony and opinion of experts plaintiff showed that the use of clamps was not the proper method of splicing such a cable.
Plaintiff in error contends that the amendment of 1919 to the Workmen's Compensation Act does not refer to independent contractors, but only to employees of intermediate or subcontractors who are not independent contractors, and that the amendment therein contained does not preclude the recovery by the plaintiff and intervener from acts of negligence resulting to them on the part of the principal contractor.
This contention avails nothing for the reason that under the evidence plaintiff in error does not come within the class of independent contractors.
As cited by plaintiff in error, this court in Midland Oil & Gas Co. v. Creel, 89 Okl. 23, 213 P. 852, held:
"An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer except as to the result of the work." Producers' Lumber Co. v. Butler, 87 Okl. 172, 209 P. 738.
In the case of C., R.I. & P. Ry. Co. v. Bennett, 36 Okl. 358, 128 P. 705, 20 A. L. R. 678, it was held that, where the contract is oral and there is no dispute as to the terms and but one inference can be drawn from the evidence, then the question of whether the relation is that of employer and independent contractor, or that of master and servant, is for the court.
Here there is no dispute as to the terms of the contract sufficient to take the question to the jury, and the facts warrant the conclusion that Cotner & Patrick were not independent contractors.
It is next contended that the Dunning Company had not brought themselves within the protection of the terms of the Workmen's Compensation Act as amended in 1919, by complying with the act, in that they had not carried insurance on Fox and other employees of Cotner & Patrick, and that thereby, under the provisions of section 7286, Compiled Oklahoma Statutes 1921, the liability prescribed by the act was not exclusive, and that an injured employee could maintain an action in the courts for damages on account of such injuries as were received.
This contention is not tenable for the reason that, under the evidence, it is shown that the Dunning Construction Company complied in every respect with the Workmen's Compensation Act in taking out insurance for their immediate employees and by posting notices and by making provisions for all employees to enjoy the benefits of the act who labored by reason of their principal contract.
Section 7285,...
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