Mistletoe Exp. Service v. Britt

• Decision Date: 27 July 1965
• Docket Number: No. 41272,41272
• Citation: 405 P.2d 4
• Parties: MISTLETOE EXPRESS SERVICE and Reliance Insurance Company, Petitioners, v. Bedford B. BRITT and the State Industrial Court and William C. Holcomb, Respondents.
• Court: Oklahoma Supreme Court

Page 4

405 P.2d 4

1965 OK 121

MISTLETOE EXPRESS SERVICE and Reliance Insurance Company, Petitioners, v. Bedford B. BRITT and the State Industrial Court and William

C. Holcomb, Respondents.

No. 41272.

Supreme Court of Oklahoma.

July 27, 1965.

Syllabus by the Court

1. Question of whether a workmen's compensation claimant was or was not an employee of an alleged employer is a jurisdictional question, and in determining such question, the Supreme Court, in reviewing an award of the State Industrial Court, will consider and weigh the evidence and make its own independent findings of fact relative to such issue.

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

3. The relation of employer and employee under our Workmen's Compensation Law may arise by implied contract, such as by knowledge and acquiescence of the employer in the services performed by the employee.

4. Record examined. Held, evidence sufficient to sustain the findings and award of the State Industrial Court.

Original proceedings by petitioners, Mistletoe Express Service and its insurance carrier, Reliance Insurance Company, to review an award of the State Industrial Court awarding compensation to respondent, Bedford B. Britt. Award sustained.

Looney, Watts, Looney, Nichols & Johnson, Oklahoma City, for petitioners.

Childers & Keller, Oklahoma City, Walton Allen, McElroy & Vaughn, Chickasha, Charles R. Nesbitt, Atty. Gen., for respondents.

HALLEY, Chief Justice.

On June 5, 1964, Bedford B. Britt, hereinafter referred to as claimant, filed a claim for compensation against Mistletoe Express Service and its insurance carrier, Reliance Insurance Company, wherein he stated that on or about March 16, 1964, and May 5, 1964, he suffered accidental injuries arising out of and in the course of his hazardous employment with Mistletoe Express Service, consisting of injuries to his back. Thereafter, on June 24, 1964, claimant filed an amended claim in which the above allegations were again set forth, except that William C. Holcomb was added with Mistletoe Express Service as an employer. Mistletoe Express Service will be referred to as Mistletoe and William C. Holcomb will be referred to as Holcomb.

Mistletoe and its insurance carrier defended on the theory that claimant was not in the employ of Mistletoe at the times he sustained his injuries but was at those times in the employ of Holcomb, who was an independent contractor. That Holcomb had less than two employees on the dates claimant sustained his injuries, and that the State Industrial Court was therefore without jurisdiction to enter an award in the case. Holcomb admitted that claimant was in his employ, but denied generally and specifically all else contained in claimant's claim for compensation.

The trial judge at the close of the evidence found that on March 16, 1964, claimant sustained an accidental personal injury arising out of and in the course of his hazardous employment with Holcomb, consisting of an injury to his lower back; that as a result of said injury he was temporarily totally disabled and was entitled to temporary total disability compensation from May 5, 1964, at the rate of $37.50 per week, and was entitled to continuing temporary total disability compensation payments during his period of temporary total disability, not to exceed 300 weeks, or until further order of the court; and that claimant was also entitled to further medical treatment.

The trial judge further found that Holcomb was a subcontractor of Mistletoe; that Holcomb did not carry a policy of Workmen's Compensation insurance; and that Mistletoe, the prime contractor, did not require Holcomb to carry such a policy. That Holcomb was therefore primarily liable to claimant for payment of the award and Mistletoe was secondarily liable; and upon such findings, accordingly entered an award in favor of claimant.

The award was appealed to the Industrial Court en banc by Mistletoe, its insurance carrier and Holcomb, where the order of the trial judge was vacated as to Holcomb and an order entered finding that Mistletoe and its insurance carrier were primarily and fully liable to claimant for payment of the award and amending the findings of the trial judge to show that claimant was an employee of Mistletoe at the time of his injury. Mistletoe and its insurance carrier bring the case here to review this award. However, the cause and extent of claimant's disability are not here in dispute.

The evidence discloses that on March 16, 1964, Holcomb worked under an oral contract for Mistletoe as a contract agent in charge of its Chickasha office. His employment was subject to termination at the will of either, although Holcomb had been with Mistletoe for over ten years. He was subject to the general control of company supervision through Mistletoe's road men. Mistletoe owned the building in Chickasha in which its office was located, and furnished it with office equipment and necessary office supplies. Holcomb owned, operated and maintained two delivery trucks, each of which had Mistletoe's name painted thereon. It was Holcomb's duty as a contract agent to pick up and deliver all freight shipped in Chickasha by Mistletoe, and he worked a full time basis in this endeavor, using both his trucks therein. Holcomb usually drove one of the trucks himself, and the other was operated by claimant. Both wore uniforma with Mistletoe badges. Holcomb was subject to the company's instructions as to the manner in which to pack and ship freight received for Mistletoe, and as to when and where to make deliveries of Mistletoe freight. His duties were required by and were an integral part of Mistletoe's business. Holcomb was paid ten per cent of the gross funds received by Mistletoe from the business done in Chickasha, plus an additional subsidy or equipment allowance, as compensation for his services. He hired and paid wages to persons employed at the Chickasha office out of these funds, but failed to provide for a policy of workmen's compensation insurance.

The evidence further discloses that claimant sustained an accidental personal injury to his back on March 16, 1964, while loading two steel drilling bits, weighing approximately two hundred eighty pounds apiece, onto a delivery truck owned by Holcomb. Claimant's general work consisted of driving one of Holcomb's trucks and handling Mistletoe's freight. He considered himself an employee of Mistletoe. On at least one occasion, claimant attended a meeting in Lawton of Mistletoe's employees as Mistletoe's guest. He was hired by Holcomb on October 1, 1963, and was so employed until May 5, 1964, when he was unable to continue working because of his back injury. Holcomb gave claimant instructions in the actual details in making deliveries of Mistletoe freight, but Cletus Hair, Mistletoe's road man, would occasionally advise claimant on such matters as to the method of weighing and looking up charges on freight and on how to make out weigh bills. Holcomb paid claimant $1.25 per hour and withheld social security and income tax from his wages.

This, in substance, constitutes the evidence in the case. Mistletoe and its insurance carrier first contend that claimant was not in the employ of Mistletoe at the time he sustained his injury but was at that time in the employ of Holcomb, who was an independent contractor. The Order on Appeal of the Industrial Court en banc made no specific finding on the issue involved as to whether Holcomb was an employee of Mistletoe at the time claimant sustained his injury or whether he was an independent contractor.

We have heretofore held that such a question is a jurisdictional question, and that in determining such question this Court in reviewing the award of the State Industrial Court will consider and weigh the evidence and make its own independent findings of fact relative to such issue. Williams et al. v. Branum et al., 192 Okl. 129, 134 P.2d 352; Ralph v. Rider Lumber Company v. Minyen et al., Okl., 317 P.2d 719; Standard Magnesium Company et al. v. Cotner et al., Okl., 332 P.2d 1; McAlester v. Tooman et al., Okl., 338 P.2d 1083; and Brewer v. Bama Pie, Inc. et al., Okl., 390 P.2d 500.

In Hunter Construction Company et al. v. Marris et al., Okl., 388 P.2d 5, 7, we said:

'The cases discussing the law of independent contractors are legion, and an argument easily obtained on the question whether, in a given situation, the person in question is a servant or an independent contractor; yet when such cases are reduced to their decisive substance, we find that the crux of the entire controversy is whether the employer had the right to control, or purported or attempted to control, the manner of the doing of the job by the alleged servant, which resulted in the injury. If he did have that right or exercised it regardless of his right to exercise it, then the relationship is that of master and servant; if he did not have that right, and did not exercise such right but had only the...