McIlvain v. Earl Blue and Tee Prairie Oil and Gas Company

• Decision Date: 07 January 1922
• Docket Number: 23,429
• Citation: 203 P. 701,110 Kan. 266
• Parties: A. H. MCILVAIN, Appellant, v. EARL BLUE AND TEE PRAIRIE OIL AND GAS COMPANY, Appellees
• Court: Kansas Supreme Court

203 P. 701

110 Kan. 266

A. H. MCILVAIN, Appellant, v. EARL BLUE AND TEE PRAIRIE OIL AND GAS COMPANY, Appellees

No. 23,429

Supreme Court of Kansas

January 7, 1922

Decided January, 1922

Appeal from Butler district court; ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMPENSATION ACT--Employee of Subcontractor--Not Within Provisions of Compensation Act. One within the workmen's compensation act who contracts with another to perform labor incidental to the business which brings the operations of the first within that act is not liable for compensation to an employee of the one who contracts to perform the incidental labor.

2 SAME. One who contracts to haul oil-and-gas well casing between the place where it is used and the place where it is repaired, and who employs but one workman to assist in performing the labor does not come within the provisions of the workmen's compensation act, although the one for whom the casing is hauled may come within that act.

H. W. Schumacher, A. L. L. Hamilton, and J. B. McKay, all of El Dorado, for the appellant.

T. J. Flannelly, Paul B. Mason, both of Independence, G. P. Aikman, C. L. Aikman, T. A. Kramer, and George J. Benson, all of El Dorado, for the appellees.

OPINION

MARSHALL, J.:

This is an appeal from an order sustaining separate demurrers of the defendants to the amended petition of the plaintiff.

The action was to recover compensation under the workmen's compensation law. The petition alleged that the Prairie Oil & Gas Company--

"Was engaged in the various branches of the oil business in Butler County, Kansas, and in doing all things incident to the production and marketing of oil and gas. That in pursuance and furtherance of its said business the said The Prairie Oil & Gas Company did some time prior to May 25, 1920, undertake to execute a part of its said business by letting a contract with its co-defendant, Earl Blue, for the execution by the said Earl Blue of part of the work and business of the said The Prairie Oil & Gas Company, to-wit:

"The loading, hauling and unloading by the said Blue for the said company of certain pipe or casing from what is known as the Redford Lease in Rock Creek Township, Butler County, Kansas, about 20 miles from El Dorado, Kansas, to a machine shop in El Dorado, Kansas, which said machine shop had been employed by said The Prairie Oil & Gas Company to repair said casing. That the said casing had been used by said The Prairie Oil & Gas Company in its production of oil on said premises, and was intended to again be used by it in the producing of oil on said premises as soon as the same could be repaired. That pursuant to said contract the said Earl Blue undertook to and did load and haul said casing from said lease to the City of El Dorado, Butler County, Kansas, to said machine shop; that the said Earl Blue hired and employed this plaintiff to assist him in loading, hauling and unloading said casing. That the said The Prairie Oil & Gas Company at all times retained and exercised direct supervision over the loading, hauling and unloading of said casing and directed the said Blue and this plaintiff how to load, haul and unload the same and what casing to haul and in general directed how said casing should be hauled. That said casing was hauled as a part of the regular trade and business of the said The Prairie Oil & Gas Company, and was used and was intended to be used by it in the conduct of its said business, and that in letting the said contract to the said defendant, Blue, the said The Prairie Oil & Gas Company undertook to and did execute a part of its trade and business of producing oil through the said contract. That the said The Prairie Oil & Gas Company owns and operates a large number of oil and gas leases in Butler County, Kansas, all of which are operated under one management and by one set of workmen, who are shifted from lease to lease, and from one duty to another as occasion demands."

The petition further alleged that the Prairie Oil & Gas Company employed more than five workmen in conducting its business; that the...