Keeling v. Schuman Bros. Lumber Co., 34741

• Decision Date: 20 March 1951
• Docket Number: No. 34741,34741
• Parties: KEELING v. SCHUMAN BROS. LUMBER CO. et al.
• Court: Oklahoma Supreme Court

Page 193

229 P.2d 193

204 Okla. 277

KEELING v. SCHUMAN BROS. LUMBER CO. et al.

No. 34741.

Supreme Court of Oklahoma.

March 20, 1951.

Syllabus by the Court.

1. In determining whether the relation between 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.

2. 85 O.S.1941 § 3, subd. 4, providing for an award against an employer of associated workmen does not apply to one contracting with a partnership engaged in general contracting as independent contractors.

3. 85 O.S.1941 § 11 provides for a secondary liability against the principal contractor and cannot be applied until a claim is filed and a proceeding commenced to obtain an award against the employer primarily liable.

L. O. Todd, B. W. Tabor, Tulsa, for petitioner.

Mont R. Powell, Anthony R. Kane, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.

JOHNSON, Justice.

Sherman Keeling, hereinafter called claimant, filed his first notice of injury and claim for compensation stating that while employed as a carpenter for the respondent, Schuman Brothers Lumber Company, he sustained an accidental injury on December 7, 1949, when he fell from a ceiling joist while erecting a prefabricated garage. Following a hearing, the trial commissioner entered an award for claimant, but on appeal the Commission en banc found that claimant was an independent contractor and denied an award.

The sole issue in this proceeding is the alleged error in finding that claimant was an independent contractor. The evidence discloses that Sherman Keeling and W. E. Cook were general partners engaged in carpenter work and construction of buildings. On the 26th day of November, 1949, they entered into a written contract agreeing to construct and erect pre-fabricated garages for the respondent, Schuman Brothers Lumber Company. This contract allowed them complete control as to the time and manner of erecting the garages except as to the blue print specifications furnished with each garage. They were to receive $40 for the erection of each garage on a foundation already completed. There is a dispute as to whether the contract was signed before or after the commencement of the first garage. This is immaterial. They could either do the work themselves or hire it done. They hired one laborer in addition to themselves. After the expense of labor and anything incident to the completion of the job they divided the $40 equally. They drew no other wages or compensation. They had erected three garages and were in the process of erecting the fourth garage when the claimant fell and sustained his injury.

Claimant relies upon 85 O.S.1941 § 3, subd. 4, which is in part as follows: "Employee' means any person engaged in manual or mechanical work, or labor in the employment of any person, firm or corporation carrying on a business covered by the terms of this Act, and shall include workmen associating themselves together under an agreement for performance of a particular piece of work, in which event such persons so associating themselves together shall be deemed employees of the person having the work executed; * * *.' (Emphasis ours.) He claims to come within the purview of the emphasized portion of section as quoted. We discussed the applicability of this section in Panther Coal Co. v. State Industrial Commission, 202 Okl. 243, 212 P.2d 133, 134. Therein the court stated: 'We had occasion to construe and apply the foregoing provision in Gruver Drilling Co. v. Morrow, 126 Okl. 18, 257 P. 1104; Newblock v. Casey, 185 Okl. 515, 95 P.2d 106; and Dixon Casing Crew v. State Industrial Commission, 108 Okl. 211, 235 P. 605. In those cases we held associated members of casing crews called in to case wells drilled by oil companies, a necessary and precedent thing to be done by the company in the completion of wells, were employees under the foregoing statute. * * *'

This section of the statute does not apply to a general partnership engaged in erecting buildings as independent contractors. The distinction between employee and independent contractor is discussed in Producers' Lumber Co. v. Butler, 87 Okl. 172, 209 P. 738, 739; Matherly v. Hamer, 174 Okl. 403, 50 P.2d 619, 621; and Williams v. Branum, 192 Okl. 129, 134 P.2d 352. In Williams v. Branum, supra, we held that...