Herron Lumber Co. v. Horn
| Decision Date | 08 October 1968 |
| Docket Number | No. 42411,42411 |
| Citation | 446 P.2d 53 |
| Parties | HERRON LUMBER COMPANY, Petitioner, v. James HORN and the State Industrial Court, Respondents. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where the relationship of employer and employee forms a disputed issue on review of a decision made by the State Industrial Court, the Supreme Court will weigh the evidence contained in the record and undertake an independent evaluation of both law and facts to establish the existence or absence of such relation.
2. The decisive test in determining whether one is an employee or an independent contractor is the right to control the physical details of the work, and such right may be established either by a formal contract or by conduct of the parties thereunder.
3. The fact that employer did not withhold social security, income tax, and other deductions from payments made to injured employee is not decisive in determining relationship between the employer and employee.
4. Where a principal employer fails to require his independent contractor to carry compensation insurance on contractor's employees and an employee of the independent contractor, while engaged in the course of his employment, sustains an accidental personal injury, compensable under the Workmen's Compensation Law, the injured employee may proceed against both the principal employer and his independent contractor, and where the State Industrial Court makes an award against the principal employer but fails to make an award against the independent contractor this court will not vacate the award against the principal employer on review.
Original proceedings to review an award of the State Industrial Court allowing claimant benefits under the provisions of the Oklahoma Workmen's Compensation Act. Award affirmed and sustained.
A. R. Daugherty, Oklahoma City, for petitioner.
Ed R. LeForce, Idabel, G. T. Blankenship, Atty. Gen., for respondents.
There is involved here for review an order of the State Industrial Court allowing the respondent James Horn, claimant below, total temporary compensation against the petitioner Herron Lumber Company, respondent below. Parties will be referred to as they appeared before the State Industrial Court.
Respondent is engaged in the lumber and timber business in McCurtain County, Oklahoma. The respondent entered into a contract with one Elmer Head on a per tonnage basis to cut, remove and process timber located on a certain forty acre tract of land in McCurtain County. Head in turn secured the services of the claimant to cut a portion of the timber on a per tonnage basis. On June 10, 1966, claimant while working was struck by a falling tree and sustained serious injuries.
The parties stipulated as follows:
(a) Respondent Herron Lumber Company has qualified as an own risk carrier under the provisions of the Oklahoma Workmen's Compensation Act.
(b) The relationship between Herron Lumber Company and Elmer Head was that of independent contractor.
(c) Elmer Head had not qualified as an own risk carrier nor had he filed the insurance coverage covering his employees as required by the provisions of the Oklahoma Workmen's Compensation Act.
(d) Claimant was working at a hazardous occupation within the provisions of the Oklahoma Workmen's Compensation Act at the time he was injured and his earnings were sufficient to entitle him to maximum weekly compensation benefits.
Respondent contends the evidence establishes the relationship between claimant and Elmer Head to be that of independent contractor and is insufficient to establish an employer-employee relationship. Respondent further contends that two employees of Head were not working on the date of the accident as required by 85 O.S.1961, § 11 to bring the accident within the provisions of the Oklahoma Workmen's Compensation Act.
Head employed claimant during the month of May, 1966, to cut and process trees. He agreed to pay the claimant forty-five cents per ton for all trees cut and processed and up until the date of the accident had paid the claimant approximately $320.98. After the trees were felled and trimmed other employees of Head skidded and hauled the logs to the respondent's sawmill a distance of about 15 miles. Claimant had worked for Head on previous occasions when he assisted with the skidding.
Claimant furnished his own power saw for cutting the trees and his own transportation to the work site. He was not required to...
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Worcester's Death, Matter of
...sufficient to establish existence of the relationship. Parten v. State Industrial Court, Okl., 496 P.2d 114 (1972); Herron Lumber Company v. Horn, Okl., 446 P.2d 53 (1968). Within this context, this court also may weigh evidence and pass upon credibility of witnesses, draw reasonable infere......
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City Diesel Service v. Collier
...Matter of Worcester, 576 P.2d 1168 (Okl.1978); Leonhardt Enterprises v. Houseman, 562 P.2d 515 (Okl.1977); Herron Lumber Co. v. Horn, 446 P.2d 53 (Okl.1968). In these cases and others setting out the same proposition, the issue was whether the claimant was an employee or independent contrac......
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Beall v. Altus Public School Dist.
...law and facts to determine the existence or absence of the relationship. Matter of Worcester, 576 P.2d 1168 (Okl.1978); Herron Lumber Co. v. Horn, 446 P.2d 53 (Okl.1968), and Hillcrest Hospital v. State Industrial Court, 452 P.2d 781 The evidence shows that the setting leading to this contr......
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Wolfe v. Shiprock Corp., 43475
...is that the order of the State Industrial Court is not sustained by the evidence and is contrary to the evidence. In Herron Lumber Company v. Horn, Okl., 446 P.2d 53, we 'Where the relationship of employer and employee forms a disputed issue on review of a decision made by the State Industr......