State Highway Com'n v. Brewer

• Citation: 165 P.2d 612,196 Okla. 437,1945 OK 253
• Decision Date: 02 October 1945
• Docket Number: 32042.
• Parties: STATE HIGHWAY COMMISSION et al. v. BREWER et al.
• Court: Supreme Court of Oklahoma

165 P.2d 612

196 Okla. 437, 1945 OK 253

STATE HIGHWAY COMMISSION et al. v. BREWER et al.

No. 32042.

Supreme Court of Oklahoma

October 2, 1945

Rehearing Denied Feb. 5, 1946.

Original proceeding by the State Highway Commission of the State of Oklahoma and the State Insurance Fund to review an award of the State Industrial Commission of the State of Oklahoma granting workman's compensation to Roy R. Brewer.

Award of State Industrial Commission sustained.

Syllabus by the Court.

1. In determining whether or not a workman is an employee or an independent contractor, this court will, in a proceeding to review an order of the State Industrial Commission, review the law and the facts independently and make its own findings as to the question of law and fact.

2. Where compensation is paid on a per yard, 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 master and servant and not that of principal and independent contractor.

Mont R. Powell, T. D. Lyons, and L. B. Moore, all of Oklahoma City for petitioners.

Claud Briggs and Thad L. Klutts, both of Oklahoma City, and Randell S. Cobb, Atty. Gen., for respondents.

PER CURIAM.

Roy R Brewer, hereinafter referred to as respondent, filed his first notice of injury and claim for compensation on July 7 1944, therein stating that on the 24th day of June, 1944 while employed as a laborer for the State Highway Commission hereinafter referred to as petitioner, he sustained an accidental injury arising out of and in the course of his employment when he injured his head and chest, ribs and pelvis and suffered internal injuries due to a collision with a truck driven by another employee of the State Highway Commission.

On the 21st day of November, 1944, the State Industrial Commission entered an award finding that as a result of the accidental injury the respondent is temporarily totally disabled and ordering payment not to exceed 300 weeks. The petitioner, together with the State Insurance Fund, seeks a review of the award. The sole argument presented is that the respondent is an employee of W. K. Welch and not an employee of the petitioner.

The evidence reasonably tends to disclose without substantial dispute that the respondent had been in the employ of the petitioner during the month of May. About the middle of this month he entered into an agreement to drive a truck for Welch. Welch had two trucks, one Welch drove himself and the other he turned over to the respondent. After respondent began to drive the truck for Welch the State Highway Commission paid all the money for the gravel hauled by the respondent to Welch and the testimony of Welch is that Welch paid respondent one- fourth of the amount his truck made. All truck drivers were paid the same based on a scale beginning at five cents per yard for the first five miles and graduating in a manner not necessary to recite. This applied to truck drivers employed and paid as admitted employees of the State Highway Commission and to the truck drivers of the Welch trucks. The project upon which the State Highway Commission was working at the time of the accident involved was near the town of Talihina in the neighborhood of the Winding-Stair Mountain on State Highway No. 2. It had been hard surfaced before and the State Highway Commission was in the process of repairing the road. For this purpose petitioner kept a checker where the trucks were loaded at the gravel pit and a checker where the trucks were unloaded and either the checker or some other employee of the State Highway Commission supervised the loading and unloading of the trucks. This supervision was indiscriminate as to whether the truck was being driven by an employee of the State Highway Commission or by a so-called independent contractor. The State Highway Commission by its rules required all parties conducting hauling relations with it, such as Welch to sign an instrument referred to as a contract and in that instrument it is provided that Welch is not an employee but is an independent contractor. At about 2 o'clock of the afternoon of June 24, 1944, another truck coming down the Winding-Stair...