Standard Magnesium Co. v. Cotner
| Decision Date | 12 November 1958 |
| Docket Number | No. 38200,38200 |
| Citation | 332 P.2d 1 |
| Parties | STANDARD MAGNESIUM COMPANY and The Western Casualty & Surety Company, Petitioners, v. Fred L. COTNER and the State Industrial Commission, Respondents. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where compensation is paid a claimant on a per mile basis and superior control and direction of the manner, method and time of performance of the work is retained by the parties paying such compensation the relation created is that of employer and employee and not that of principal and independent contractor.
2. Record examined. Held, evidence sufficient to sustain the finding and award of the State Industrial Commission.
Original proceeding by petitioners, Standard Magnesium Company and its insurance carrier, Western Casualty and Surety Company, to review an award of the State Industrial Commission awarding compensation to Fred L. Cotner, claimant. Award sustained.
Rhodes, Crowe, Hieronymus & Holloway, Tulsa, for petitioners.
Robert W. Booth, Tulsa, Mac Q. Williamson, Atty. Gen., for respondents.
On the 17th day of December, 1956, Fred L. Cotner, claimant herein, filed a claim for compensation against his employer, Standard Margnesium Company, and its insurance carrier, Western Casualty and Surety Company, referred to herein as petitioners, stating that on October 14, 1956, while in the employ of petitioner Standard Magnesium Company, and engaged in the course of his employment, he sustained an accidental injury consisting of an injury to his upper and lower back resulting in some permanent disability to his person. The injury occurred while he was engaged in lifting bags of magnesium, each weighing about 64 pounds.
Petitioners defendant on the theory that claimant was not an employee of Standard Magnesium Company at the time he sustained his injury but was employed as an independent contractor.
The trial court at the close of the evidence in substance found: On October 14, 1956, claimant, while in the employ of petitioner Standard Magnesium Company, and engaged in a hazardous employment, sustained an accidental injury arising out of and in the course of his employment consisting of an injury to his back; that as a result of said injury he is temporarily totally disabled and is entitled to temporary total disability compensation from the date he presents himself for examination at the rate of $28 per week and is entitled to continuing temporary total disability compensation payments during his period of total temporary disability, not to exceed 300 weeks, or until further order of the Commission; and further found that claimant is entitled to further medical treatment and upon such findings entered an award in favor of claimant for temporary total disability compensation accordingly and held in abeyance the question of extent of disability for future hearing, which award was sustained on appeal to the Commission en banc.
Petitioners bring the case here to review this award and rely for its vacation on the sole ground that the Commission was without jurisdiction to enter the award because the evidence shows that claimant was not an employee of Standard Magnesium Company, but rather working as an independent contractor and therefore was not covered by the Workmen's Compensation Act, 85 O.S.1951 § 1 et seq.
The evidence offered on behalf of claimant established that he sustained an accidental injury at the time and in the manner stated in his claim; that he was the owner of a truck and trailer and entered into a contract with petitioner Standard Magnesium Company to lease and drive the truck for a period of 12 months on a mileage basis. He was to receive 28 cents per mile for the lease and use of the truck and his driving. He received two checks in payment thereof, one at the rate of 23 cents per mile for the use of the truck, and one for 5 cents per mile for his services in driving it. Claimant was permitted under the contract to hire another person to drive the truck but in that event the driver was to receive 5 cents a mile for his services and claimant was to receive 23 cents per mile for the lease and use of the truck.
Claimant under the contract was required to pay all of the costs, traveling expenses and upkeep of the truck. These facts are undisputed.
Claimant, in addition to the above state of facts, testified that on the date he sustained his injury he moved his truck to the loading dock at the request of petitioner, Standard Magnesium Company. The truck was to be loaded with magnesium anodes for the purpose of transporting them from said petitioner's place of business in Tulsa, Oklahoma, to Chicago, Illinois. The anodes consisted of an antirust material and are used to keep rust out of pipeline electrical equipment. The anodes were packaged in paper bags, two to a unit. The packages weighed about 64...
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