Keith v. Mid-Continent Petroleum Corp.

• Decision Date: 22 June 1954
• Docket Number: No. 35982,MID-CONTINENT,35982
• Citation: 1954 OK 196,272 P.2d 371
• Parties: KEITH v.PETROLEUM CORP.
• Court: Oklahoma Supreme Court

Page 371

272 P.2d 371

1954 OK 196

KEITH v. MID-CONTINENT PETROLEUM CORP.

No. 35982.

Supreme Court of Oklahoma.

June 22, 1954.

Syllabus by the Court.

1. An independent contractor is one who engage to perform a certain service for another, according to his own manner and method, free from control and direction of his employer in all matters connected with the performance of the service, except as to the result or product of the work.

2. The question of what constitutes an independent contractor may involve only a question of law, but ordinarily it involves a mixed question of law and fact. Where the evidence with respect to the relation is oral, and is sufficient to establish the existence of some relation and is uncontradicted, and is reasonably susceptible of but a single inference, it is a question of law. If the evidence is conflicting, or is such that different deductions may reasonably be drawn, leading to different conclusions as to what relation is established, it is a question of fact, in the sense that the triers of the facts must determine the facts and draw the inferences and make the deductions; but even in such case a certain legal principle must be applied to the facts as found, and a question of law is involved, so that the ultimate question of whether a person is an employee or an independent contractor under certain facts involves a question of law.

3. Where, in an action for damages for wrongful death, the primary issue was whether the relationship of master and servant existed between defendant and deceased, it was not error to refuse plaintiff's requested instructions to the effect that such was the parties' relationship.

Frank Seay, W. B. Edwards, Seminole, for plaintiff in error.

Truman B. Rucker, R. H. Wills, J. H. Crocker, J. P. Greve, J. H. Woodward, Walter B. Hall and Ben Hatcher, Tulsa, for defendant in error.

CORN, Justice.

Plaintiff, administrator of the estate of Dudley Lancaster, deceased, brought this action for the benefit of the surviving widow and minor child, seeking to recover damages for the alleged wrongful death of deceased. A jury trial resulted in a verdict and judgment for defendant.

Disposition of the questions presented by this appeal does not require an extended recitation either of the issues presented by the amended pleadings upon which the case was tried, or of the evidence adduced by the parties.

The corporate defendant owned a wholesale marketing establishment in Seminole, Oklahoma, used for sale and distribution of defendant's petroleum products. February 18, 1946, defendant entered into a Bulk Station Contract with deceased, the pertinent portions of which were in the following form:

'This contract, entered into this 18th. day of February, 1946, by and between Mid-Continent Petroleum Corporation, having an office at Tulsa, Oklahoma, hereinafter called 'Corporation' and Dudley Lancaster of Seminole, Oklahoma, hereinafter called 'Agent' to become effective the 1st. day of April, 1946, and to continue in full force and effect until terminated as hereinafter provided, Witnesseth:

'Corporation hereby authorizes Agent to operate, and Agent hereby agrees to operate, Corporation's Bulk Station No. 184 at Seminole, Oklahoma and in connection therewith to sell and deliver its petroleum and other products, subject to the terms and conditions herein provided, in the following described territory;

'All of Seminole, Pottawatomie and that part of Hughes County south of a line due east and west 1 mile south of Yeager, and Prague in Lincoln County.

'It is specifically understood that Agent is not vested with exclusive rights to sell and deliver Corporation's products in the above described territory.

'1. Corporation shall:

'(a) ship to Agent, at the aforesaid location, such petroleum and other products as may, in the judgment of the corporation, be justified;

'(b) pay to Agent, as soon after the first of each calendar month as practicable, commissions on petroleum and other products sold and delivered by him at the following rates, expressed in cents per gallon, to-wit:

'(c) not pay commissions on carload or transport sales or deliveries of petroleum or other products, unless agreed to in writing prior to time of sale, nor on sales where shipment or delivery is refused or merchandise is returned;

'(d) pay for power and fuel used in unloading tank cars;

'(e) provide Agent with such truck tanks and truck tank equipment as will, in the opinion of Corporation, meet the needs of Agent, which shall, at all times, remain the property of the Corporation;

'(f) assume and pay all expenses of maintenance and upkeep of Corporation's property.

'2. Agent agrees to;

'(a) accept commissions at the aforesaid rates in full compensation for the performance of all of his duties and obligations hereunder, and pay any and all expenses incurred by him in connection with the performance thereof and all expenses incidental to the operation of the aforesaid Bulk Station, except expenses for power and fuel used in unloading tank cars;

'(b) receive, unload, handle, care for, sell and deliver such petroleum and other products as the Corporation delivers to the aforesaid Bulk Station;

'(c) sell and deliver the aforesaid products for cash only, except when credit is specifically authorized by Corporation in writing, at prices and on terms fixed by Corporation, and invoice all sales and deliveries in the name of Corporation;

'(d) keep a full, true and correct account of all sales and deliveries of the aforesaid products at or from the aforesaid Bulk Station, and make accounting statements and reports of stock on hand, sales and deliveries according to such system and on such forms as Corporation may designate;

'(e) promptly remit to Corporation, at its aforesaid office, all moneys and sales tickets received by him from the sale of the aforesaid products, or, deposit such money in such bank as is designated by Corporation to the account of Corporation and subject to its order;

'(f) permit the making of such audits as Corporation may desire;

'(g) provide, maintain and operate whatever truck chassis as may be necessary to make proper sales and delivery of the aforesaid products in the aforesaid territory; and install on said chassis, truck tanks and truck tank equipment supplied by Corporation;

'(h) pay any and all taxes, license fees, excises, mileage fees and privilege taxes that may be levied or imposed upon said truck or trucks or upon the operation thereof;

'(i) employ, upon his own responsibility and at his own risk and expense, such helpers as may be necessary or convenient for the efficient performance of Agent's duties and obligations hereunder; it being understood and agreed that all such helpers shall be servants and employees of, and under the sole supervision, direction and control of Agent, and that Corporation shall not in any way be liable for their acts and conduct; and Agent further agrees to comply, as an employer, with all the requirements of State and Federal laws, rules and regulations, including Social Security and Unemployment Compensation Laws and to collect, report and pay all taxes required to be paid by such laws by reason of the employment of such helpers, and also to comply, as an employer, with all applicable Workmen's Compensation Laws with reference to such helpers;

'(j) pay for public liability and property damage insurance for each motor vehicle at any time operated by him or his agents, servants, or employees in the performance of this contract, covering liability for injury in one accident to one person to the amount of not less than Ten Thousand Dollars ($10,000.00) and for injury or injuries in one accident to more than one person to the amount of not less than Twenty Thousand Dollars ($20,000.00), and for damages to property of others, whether one or more in one accident, to the amount of not less than Five Thousand Dollars ($5,000.00); and shall notify Corporation before placing in operation any such motor vehicle; and Corporation is hereby authorized to and shall secure from a reliable insurance company said insurance and keep the policy or policies in its possession during the life of this contract, and is authorized to renew all policies at their expiration under and upon the same terms, conditions and provisions as are hereinafter specified;

'(k) provide and pay for telephone and listing same in telephone directory in the name of Corporation, provided that Corporation will reimburse Agent for the expense of listing in telephone directory in the name of Corporation;

'(l) furnish a satisfactory bond, conditioned for the proper remittance to the Corporation of all sums due to it;

'(m) be liable for anc Corporation is hereby authorized to deduct and withhold from Agent's commissions or from any compensation due Agent, or to otherwise collect any amount or amounts sufficient to cover petroleum or other products purchased by Agent, cash shortages, merchandise shortages, material shortages, checks accepted in violation of Corporation's 'currency only' instructions, checks accepted from unauthorized non-contract customers, and credit sales not specifically approved by Corporation; and in computing merchandise shortages, if any, Corporation's prevailing wholesale price, in said territory, on date shortage is determined, are to be used;

'(n) indemify Corporation against and save it harmless from all claims, liabilities, losses and suits arising or growing out of the operation of the aforesaid Bulk Station, or out of the acts, omissions and conduct of Agent in connection therewith and the acts, omissions and conduct of all persons employed or allowed by him to participate and assist in the performance of this contract;

'3. It is agreed that the authority and powers of Agent are expressly limited by this contract, and that Agent has no authority or power save and except as is expressly set forth herein.

'4. It is further agreed that Agent, in executing and...