Savings v. Whitney

• Decision Date: 06 December 1938
• Docket Number: Case Number: 26918
• Citation: 1938 OK 624,86 P.2d 298,184 Okla. 190
• Court: Oklahoma Supreme Court
• Parties: STANDARD SAVINGS & LOAN ASS'N v. WHITNEY et al.

1938 OK 624

86 P.2d 298

184 Okla. 190

STANDARD SAVINGS & LOAN ASS'N v. WHITNEY et al.

Case Number: 26918

Supreme Court of Oklahoma

Decided: December 6, 1938

Syllabus

¶0 1. WORKMEN'S COMPENSATION - Duty of Employer to Exact of Independent Contractor Compliance With Compensation Law.

An employer carrying on for pecuniary gain a trade, business, or occupation recognized and designated in the Workmen's Compensation Law of this state (O. S. 1931, sec. 13348 et seq.: 85 Okla. St. Ann. sec. 1 et seq.) as being hazardous, is legally bound to exact of an independent contractor a compliance with said law, in instances wherein manual or mechanical work, or labor, which is a part of, or process in, such business, trade, or occupation, is to be performed by the independent contractor and his employees.

2. SAME - Owner of improved Property Employing Independent Contractor to Make Repairs Held not Liable for Payment of Award to Injured Workman Where Contractor Had Failed to Comply With Compensation Law.

An owner of improved real estate located in a city in this state, but who was not engaged in the business of repairing buildings for pecuniary gain, employed an independent contractor to make needed repairs on the buildings situated on said property. The independent contractor employed workmen, as his direct employees, to perform the manual work or labor connected with the undertaking, but omitted to secure or provide for payment of injury disability compensation to said workmen in any of the ways provided for in the Workmen's Compensation Law of this state. While thus engaged one of said workmen sustained an injury resulting in disability compensable under said Workmen's Compensation Law. The State Industrial Commission made an award of compensation to said workman and adjudged the owner of the property, as well as the independent contractor, to be liable for payment of said award. Held, that the owner of the real estate was not legally bound to exact of the independent contractor a compliance with said Workmen's Compensation Law, and that therefore it was error for the State Industrial Commission to adjudge said owner to be liable for payment of the award.

Original action in the Supreme Court by the Standard Savings & Loan Association to review award of the State Industrial Commission, where it was held secondarily liable to E.R. Whitney. Award vacated.'

Shirk, Danner & Earnhart, for petitioner.

C.D. Lewis and the Attorney General, for respondents.

BAYLESS, V. C. J.

¶1 Standard Savings & Loan Association, a corporation, engaged in the business of making loans on real estate security, became owner, through foreclosure proceedings, of a number of residence properties located in the city of Okmulgee, Okla. Thereafter said association entered into an agreement with one O.R. Hisel, by the terms of which Hisel was to make such repairs as in his judgment were necessary to put the buildings on said properties in a good state of repair, and to furnish therefor at his cost the necessary materials and workmen. In respect to the extent of the repairs and the method, means, or procedure in the accomplishment, Hisel was to be free to proceed in accordance with his own ideas, without any supervisory direction or control on the part of the association. He was to receive as compensation for performing the undertaking an amount equaling the cost of the materials and labor plus 5 per centum. In carrying out the undertaking, Hisel omitted to secure payment of injury disability compensation to his employees in any of the ways provided for in the Workmen's Compensation Law of this state. He hired one E.R. Whitney, along with a number of other workmen, to perform the manual work or labor connected with making the repairs. And Whitney, while so engaged, in the course of and arising out of said employment, sustained an accidental personal injury resulting in an inguinal hernia. Thereafter Whitney filed with the State Industrial Commission an employee's first notice of injury and claim for compensation. And thereafter, after hearings had, the commission made the following findings:

"1. That on the 21st day of December, 1933, claimant was in the employ of O.R. Hisel, an independent contractor for the Standard Savings & Loan Company, and engaged in a hazardous occupation subject to and covered by the provisions of the Workmen's Compensation Law, and that on said date he sustained an accidental injury, arising out of and in the course of his employment, consisting of a strain resulting in a left inguinal hernia. 2. That the average daily wages of the claimant was at the time of the accidental injury $4.80 per day, making his weekly rate of compensation $18 per week."

And thereupon the commission ordered:

"That * * * O.R. Hisel, being primarily liable and the Standard Savings & Loan Company being secondarily liable, pay to the claimant herein, the sum of $144 being 8 weeks' compensation at the rate of $18 per week and tender claimant an operation and the necessary medical and hospital expenses to correct said hernia due to said accidental injury."

¶2 Thereafter Standard Savings & Loan Association commenced this action for review of the aforementioned award. Hisel does not seek a review of said award.

¶3 That E.R. Whitney sustained an injury resulting in disability compensable in accordance with the provisions of the Workmen's Compensation Law is well established in the record. And the commission's award of compensation therefor as against O.R. Hisel is not challenged in this proceeding. But we are called upon to determine whether in the premises the commission acted with authority in adjudging Standard Savings & Loan Association liable for payment of said award.

¶4 It was conclusively established by the evidence adduced before the commission that throughout, and in relation to the undertaking which he had undertaken to perform, the status of O.R. Hisel was, and remained, that of an independent contractor; and that E.R. Whitney was the direct employee of Hisel.

¶5 In the Workman's Compensation law of this state (O. S. 1931, sec. 13348 et seq.; 85 Okl. St. Ann. sec. 1 et seq.) it is provided:

"Every employer subject to the provisions of this act shall pay, or provide as required by this act, compensation according to the schedules of this article for the disability of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury; * * * provided, * * * and provided, further, that the liability of any person, firm or corporation having an interest in the subject matter, employers, and contracting employers, general or intermediate, for compensation under this act, when other than the immediate employer of the injured employee, shall be as follows:

"1. In the absence of provisions to the contrary in any contract with an independent contractor, such independent contractor shall be

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