Wagoner v. A. A. Davis Constr. Co.

• Decision Date: 20 October 1925
• Docket Number: Case Number: 16504
• Parties: WAGONER v. A. A. DAVIS CONSTRUCTION CO. et al.
• Court: Oklahoma Supreme Court

1925 OK 855

240 P. 618

112 Okla. 231

WAGONER v. A. A. DAVIS CONSTRUCTION CO. et al.

Case Number: 16504

Supreme Court of Oklahoma

Decided: October 20, 1925

Syllabus

¶0 1. Master and Servant -- "Independent Contractor."

An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer except as to the result of the work.

2. Same--Refusal of Award for Injuries Under Workmen's Compensation Law.

Where it appears that a claimant, claiming a right to compensation under the Workmen's Compensation Act, had the right to perform the contract with his principal according to his own methods, and had the right thereunder to employ, and did employ, his own workmen and was not subject to the control of the principal, except as to the result of the work being performed under the contract, the relation of employer and employe did not exist, notwithstanding the principal reserved the right to terminate the work at any time, and notwithstanding the claimant was not given a specific piece of work to perform for a lump sum.

Commissioners' Opinion, Division No. 5.

Error from State Industrial Commission.

Action by J. F. Wagoner, petitioner, against A. A. Davis & Company, J. M. Howell, United States Fidelity & Guaranty Company, and the State Industrial Commission, respondents, to set aside an order of the Industrial Commission denying workman's compensation. Order sustained.

Ratliff & Ratliff, for petitioner.

J. F. Swanson and Rittenhouse & Rittenhouse, for respondents.

FOSTER, C.

¶1 This is an original proceeding instituted in this court by J. F. Wagoner to review an order of the Industrial Commission denying claimant compensation for an accidental injury alleged to have been sustained by him as an employe of A. A. Davis & Company and J. M. Howell. The United States Fidelity & Guaranty Company was the insurance carrier. The claimant will be hereinafter designated as claimant, and A. A. Davis & Company, J. M. Howell, United States Fidelity & Guaranty Company, and State Industrial Commission, as respondents.

¶2 The Industrial Commission found:

"That on the 26th day of December, 1923, claimant was engaged in manual labor incident to the performance of a contract by and between respondent and claimant herein, the claimant not being subject to the control of respondent except as to the finished result and being permitted under the said contract, and having the right to perform said contract according to his own methods, and that claimant had a right under said contract and did employ workmen to perform a portion of the labor required to be performed under said contract, and that the relation of employer and employe did not exist between respondent and claimant on the 26th day of December, 1923. The Commission is of the opinion, by reason of the aforesaid facts, that respondent and insurance carrier should be relieved of liability in this cause and the claim of the claimant for compensation denied and this cause dismissed. It is therefore ordered that respondent and insurance carrier, be, and each of them is, hereby relieved from liability in this cause, the claim of the claimant for compensation being and the same is hereby denied and this cause closed."

¶3 It is agreed that there is but one proposition for this court to determine and that is whether claimant was an independent contractor or an employe of A. A. Davis & Company at the time he received injuries for which he claims the right to compensation.

¶4 It appears that claimant was engaged by respondent A. A. Davis & Company through a subcontractor, J. M. Howell, to haul gravel from railroad cars, in the town of Weleetka, and dump the same on a certain highway which A. A. Davis & Company was under contract to construct in Okfuskee county. When claimant commenced hauling the gravel in the year 1923, he employed one truck, which he operated himself, but later placed two other trucks on the job, hiring men to operate these trucks. Claimant was paid so much per cubic yard for hauling the gravel, the amount depending upon the distance hauled. The gravel so hauled was dumped along the highway, as the building thereof progressed, according to directions from A. A. Davis & Company. Claimant was paid by tickets issued by the inspector as the gravel was dumped, and subsequently cashed on presentation at regular intervals of two weeks. The contract under which claimant performed these services was entirely oral and was subject to termination at the will of either party, there being no time agreed upon nor any special quantity of gravel to be hauled, the claimant being at liberty to discontinue work at any time and the respondent at liberty to dispense with claimant's services at any time. Claimant controlled the hours of work of both himself and his employes.

¶5 These are, we think, the salient points in the evidence upon which the Industrial Commission found and concluded that the relationship between claimant and respondent was that of principal and independent contractor. The evidence with respect to the relation between claimant and respondent being oral, the question of whether the relationship was that of principal and independent contractor or employer and employe becomes a mixed question of law and fact. Producers' Lumber Co. et al. v. Butler, 87 Okla. 172, 209 P. 738. It is therefore necessary for this court to review both the law and the evidence in the case in order to determine whether or not the Industrial Commission erred in its conclusion that the relation of employer and employe did not exist between respondent and claimant on the 26th day of December, 1923.

¶6 It is apparent, from the above quoted findings, that the Industrial Commission based its conclusion that the relation of employer and employe did not exist between respondent and claimant on findings by it that claimant had the right to perform his contract according to his own methods, and had the right thereunder to employ and did employ, his own workmen and was not subject to the control of the...