Palmer v. Skelly Oil Co.

• Decision Date: 22 November 1927
• Docket Number: Case Number: 16536
• Citation: 129 Okla. 32,263 P. 440,1927 OK 441
• Parties: PALMER v. SKELLY OIL CO. et al.
• Court: Oklahoma Supreme Court

1927 OK 441

263 P. 440

129 Okla. 32

PALMER v. SKELLY OIL CO. et al.

Case Number: 16536

Supreme Court of Oklahoma

Decided: November 22, 1927

Syllabus

¶0 1. Master and Servant--Relation Arising Only out of Contract.

The relation of master and servant arises only out of contract; to constitute such contract there must be mutual understanding; a mutual agreement between and a mutual meeting of the minds of the parties.

2. Same--Existence of Relation a Jury Question.

Evidence examined, and held, question whether the relation of master and servant existed between defendant and plaintiff for the jury.

3. Same--Workmen's Compensation Law of Kansas--Benefits Optional with Employer and Employee.

Under the Workmen's Compensation Law of the state of Kansas, every employer and every employee, entitled to come within its provisions, is given the right to elect whether or not be will come within its provisions.

4. Same--Employer not Presumed to Have Come Within Provisions of Law.

Where an employee of one who is not presumed to come within its provisions has not himself elected to come thereunder, it will not be presumed that he is within its provision.

Commissioners' Opinion, Division No. 2.

Error from District Court, Canadian County; W. H. Zwick, Judge.

Action by W. S. Palmer against the Skelly Oil Company and the Tidal Oil Company. Judgment for defendants, and plaintiff brings error. Affirmed in part and reversed in part.

Ledbetter, Stuart, Bell & Ledbetter and Morrison & Morrison, for plaintiff in error.

Y. P. Broome, W. P. McGinnis, Alvin F. Molony, Joe T. Dickerson, and W. P. Z. German, for defendants in error

DIFFENDAFFER, C.

¶1 This is an action for damages for personal injuries, alleged to have been received by plaintiff while he was engaged as a driller in drilling an oil well on a lease owned by defendants in Greenwood county, Kansas.

¶2 The accident occurred on the 14th day of January, 1923. Plaintiff alleges that he was employed by one Clyde Boggs, under the name of Clyde Drilling Company; that Boggs was drilling the well under a contract with defendants, when he employed plaintiff, and that he commenced to work on the well about the 27th day of December, 1922; that defendants had erected an engine house, belt house and derrick, and thereafter contracted with Boggs to furnish and install the necessary drilling machinery and drill the well; sets out specifically the injuries, and alleged negligence in the construction of the belt house; and alleged that as the belt house was constructed and the machinery installed therein, there was not sufficient room between the wall of the belt house and the belt wheel by which the machinery connected with the engine by belt was driven to allow him in the performance of his duties to pass between the wheel and the wall, and that a key which was used to tighten the wheel on the shaft was permitted to extend several inches beyond the edge or rim of the belt wheel, so that plaintiff, in passing between the wall and the wheel, at the direction of the superintendent in charge of the work at that time for defendant Skelly Oil Company, to place dressing on the belt to prevent it from slipping, was caught by the key on the revolving shaft, resulting in serious and permanent injuries to him. He seeks to charge defendants with responsibility for these injuries, and alleges that, on or about January 12, 1923, two days before the date of the accident, Clyde Boggs, his employer, and defendants entered into an arrangement whereby defendants took over the work and assumed the drilling of the well, and placed their superintendent in full charge thereof, without the knowledge of plaintiff, and charges negligence of defendants in failing to properly inspect the building, machinery, etc., and in failing to furnish a suitable guard for the wheel, belt, shaft, and key. He then alleges that he was not at the time an employee of defendants, but he was then, as he had theretofore been, an employee of Clyde Boggs, and that neither defendants nor Clyde Boggs had ever informed him of the arrangement whereby defendants were to take over the drilling of the well, and that he had no knowledge thereof, and had not consented to the transfer of his services from Clyde Boggs to defendants. He then alleges that Boggs was not operating under the provisions of the Workmen's Compensation Law of the state of Kansas, in that said law provides that it shall not take effect unless at least five men shall have been continuously employed for at least 30 days prior to the time of the accident, unless such employer shall have filed written election with the Secretary of State to come under such law, and that Boggs had not employed five men continuously for 30 days prior to the accident, and had not filed such written election. A copy of the Workmen's Compensation Law of Kansas was attached to his petition as a part thereof.

¶3 The defense of Skelly Oil Company was, that it alone was developing said lease and had erected the belt house. It admitted that it had, on the 12th day of January, entered into the arrangement with Boggs, whereby it did take and assume full charge of the rig, machinery, and control and direction of the employees, and placed the employees, including plaintiff, under the charge, control, direction, and management of its superintendent, and that plaintiff, having knowledge thereof, accepted employment by it and became its employee; that if it be mistaken as to plaintiff becoming its employee, nevertheless the work was at the time of plaintiff's injury under its control and management. It then pleaded contributory negligence and assumption of risk; it then pleaded that it had more than two men employed, and that under the Workmen's Compensation Law of Oklahoma, the court was without jurisdiction; further, that it had complied with and elected to come under the provision of the Workmen's Compensation Laws of the state of Kansas, and that the injury of plaintiff was one for which compensation was provided by the laws of that state; that plaintiff had not complied with that law in that no notice of the injury was given, and no claim for compensation was filed, within the time provided by the Workmen's Compensation Law of the state of Kansas.

¶4 Defendant Tidal Oil Company answered by general denial, and adopted substantially all the allegations in the answer of Skelly Oil Company.

¶5 Plaintiff replied by general denial, and upon the issues thus joined, the case was tried to a jury, resulting in a directed verdict for defendants.

¶6 We think the order of the trial court was correct as to defendant Tidal Oil Company, as there is no evidence whatever to connect them with any responsibility. It is clear that the entire transaction for the drilling of the well was with the Skelly Oil Company.

¶7 As to defendant Skelly Oil Company, a different situation is presented. The trial court in passing upon the motion for a directed verdict, after commenting on the question of whether or not primary negligence had been proved, said:

"That I think is incidental only because I think under the undisputed facts he was an employee of the Skelly Oil Company, and therefore his remedy would be before the Industrial Commission, and not before this court as a common law liability."

¶8 This appeal presents two questions: First, did the court err in holding as a matter of law that plaintiff was at the time of his injury an employee of the Skelly Oil Company? And, second, that if plaintiff was not an employee of the Skelly Oil Company at the time of his injury, would his remedy be under the Workmen's Compensation Law of the state of Kansas by reason of the provisions of section 3 of said act?

¶9 As to the first question, plaintiff introduced evidence tending to prove the allegations of his petition with reference to his having no knowledge of the fact that defendant Skelly Oil Company had taken over the work and assumed complete charge thereof two days before his injury, and also to the effect that after the superintendent of the Skelly Oil Company had taken charge of the work, he, plaintiff, did not know that he was the superintendent for Skelly Oil Company, and that he, plaintiff, had asked the superintendent whom he, plaintiff, was working, for, and defendant's superintendent informed him that he was still working for Clyde Boggs. The evidence also shows that Boggs paid plaintiff for the labor down to the date of his injury. Defendant offered some evidence tending to prove that plaintiff knew of the arrangement and impliedly accepted the Skelly Oil Company as his employer.

¶10 It is conceded that if plaintiff was an employee of Skelly Oil Company, he cannot recover in this action. Whose employee he was, we think, was a question for the jury.

¶11 In 39 Corpus Juris, p. 36, it is said:

"The general servant of one person may become the servant of another by submitting himself to the direction and control of the other with respect to a particular transaction or piece of work, and even though the general employer has an interest in the special work, but such a relation between the borrower and the servant is not established unless it appears that the servant has expressly, or by implication, consented to the transfer of his services to the new master. Where a master gives the labor of his servant to another, the master retaining supervision and control, the loaned servant is not the servant of the borrower, but is while so engaged the servant of the general master"

¶12 In New v. McMillan, 79 Okla. 70, 191 P. 160, this court held:

"Where it is agreed that the relation of master and servant had existed up to a given time, but an issue as to whether such relation ceased at such time and was transferred to a third person, a reasonable test in such case is whether or not the servant by mutual agreement terminated his employment, ceased to be under the control and orders of the former master, renounced obedience to such master, and

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