McCowan v. Ford
| Decision Date | 04 April 1972 |
| Docket Number | No. 45002,45002 |
| Citation | 495 P.2d 1283 |
| Parties | James C. McCOWAN, Petitioner, v. Herman Johnson FORD et al., Respondents. |
| Court | Oklahoma Supreme Court |
Don L. Dees, Tulsa, for petitioner.
D. E. Sides, O'Toole, Lee & King, Oklahoma City, for respondents.
This is an original proceeding for review of orders of the State Industrial Court in a workmen's compensation proceeding. The petitioner herein, James McCowan, was the claimant and Herman Johnson Ford Company, of Sapulpa, Oklahoma (hereinafter referred to as the respondent), was the alleged employer. It is admitted that a policy of workmen's compensation insurance, issued by Hardware Mutual Casualty Company, covering the respondent's employees, was in force on the date of the alleged accident, February 6, 1970.
The answer of the respondent and insurance carrier specifically denied, among other things, that the claimant was employed by the respondent at the time and place of his alleged injuries, or that the allegd injuries were sustained by the claimant in the course and scope of employment with the respondent.
According to the testimony of the claimant, he had purchased from the respondent, on February 4, 1970, a tractor equipped with a loader on the front-end and a hydraulic dirt box, weighing about 500 pounds, on the back-end, to be delivered at his home in Bartlesville, Oklahoma. He needed the tractor--he had some jobs to do with it, 'scraping, and hauling foundation dirt and stuff like that,' and 'cleanup' work. On the day in question, one man, named Allen (later identified as an employee of the respondent), brought the tractor to his home on a truck with a 'low boy' trailer, unloaded it in the street and parked it in the street near the claimant's home. It turned out that the hydraulic dirt box on the back end of the tractor did not work, so Allen started to fix it and, in the course of doing so, asked the claimant to pry against the box with a four-by-four (furnished by claimant) while he knocked out a pin. Claimant was doing so, leaning against the timber with his shoulder and holding it with his arms, when the pin was knocked out and the box fell on him. Allen had not agreed to pay him anything for helping him.
The trial judge found and concluded 'That claimant was not an employee of respondent on February 6, 1970, and that this court has not jurisdiction in this cause, and therefor said claim should be denied,' and, based thereon, ordered that the claim was denied. On appeal therefrom, the State Industrial Court, sitting en banc, ordered that that order of the trial judge be adopted, affirmed, and made the order of the court.
In Reeves v. Muskogee Cotton Oil Company et al. (1940), 187 Okl. 539, 104 P.2d 443 (), this court held in the first paragraph of its syllabus:
'The relation of master and servant or employer and employee within the meaning of the Workmen's Compensation Act must be shown to have been existent at the time of the injury before the State Industrial Commission is authorized to make an award of compensation for such injury.'
Insofar as the principles of law are concerned, we find no fault with the claimant's argument that, for the purposes of the workmen's compensation statutes, the requisite employer-employee relationship may exist under either an express or implied contract of employment (Reeves v. Muskogee Cotton Oil Company et al., supra), and that the protection of the workmen's compensation act extends to all workmen engaged in the described hazardous employments, however brief the employment, provided there is in fact an employment (Ice et al. v. Gardner (1938), 183 Okl. 496, 83 P.2d 378). The problem is that either principle requires a contract of employment, express or implied, between the parties involved, or (according to the Reeves case) a showing of acts from which it can be said that the parties unequivocally recognized the existence of the employer-employee relationship. No such acts were shown in this case.
The claimant's principal argument is to the effect that, even though, in the present case, there was no agreement for wages or salary or any exchange of material goods in connection with what the claimant was doing at the time in question, a benefit to be derived by one party is sufficient consideration for a contract, and, in this instance, the claimant needed the tractor immediately and, by helping the respondent's employee to repair the tractor, he would get the tractor into operation sooner than he would if it were taken back to Sapulpa for repairs and then returned to him. It is argued that, in that situation, the claimant was not merely a 'requested volunteer' as this court, in Ice et al. v. Gardner, supra, referred to the status of the claimant (or plaintiff) in Hogan et al. v. State Industrial Commission et al. (1922), 86...
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...by contract, either express or implied, or by the unequivocal acts of the parties recognizing the relationship. See also McCowan v. Ford, 495 P.2d 1283 (Okl.1972); Smith's Estate v. Hearon, 424 P.2d 970 (Okl.1967); Mahl v. McMahan, 325 P.2d 78 (Okl.1958); El Reno Broom Co. v. Roberts, 138 O......
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