Travelers Ins. Co. v. Blackburn , 161 Okla. 140 ( 1932 )

This is an original proceeding in this court instituted by the respondent and its insurance carrier before the State Industrial Commission to review an award in favor of the claimant therein. The parties hereinafter will be referred to as petitioners and claimant.

The record discloses that the claimant, while in the employ of W.D. Taylor, a building contractor engaged in the performance of a contract with one H.A. Kirkland, fell from a scaffold and received an injury to his hips and shoulders and other injuries. He filed his claim for compensation and named the petitioner Dunn Fuel Lumber Company as the employer. Thereafter he filed an amendment to his first notice of injury and alleged that he had learned that H.A. Kirkland claimed to be the employer of the claimant and asked that H.A. Kirkland be made a party to the proceedings. Thereafter he filed a second amendment to his notice of injury and asked that W.D. Taylor be made a party to the proceedings, and that the State Industrial. Commission determine who was the employer of the claimant. The petitioner and its insurance carrier each filed a separate answer denying all liability. H.A. Kirkland filed his answer denying that he was in business classified under sections 7283 and 7284, C. O. S. 1921, and denying that the claimant was in his employ at the time of the injury, but alleging that he was in the employ of W.D. Taylor, an independent contractor.

After a hearing was had, the State Industrial Commission found that W.D. Taylor, the contractor, was primarily liable and that the petitioners were secondarily liable. No reference therein was made to H.A. Kirkland.

The petitioner Dunn Fuel Lumber Company contends that there is no evidence to sustain the finding of the Commission that the petitioner is secondarily liable to the claimant.

It contends that Taylor is primarily liable and that Kirkland is secondarily liable.

Before the claimant can recover compensation from the petitioner, it is necessary for him to show that he was an employee of the contractor, Taylor; that Taylor carried no compensation insurance, and that the petitioner was the principal employer.

In Hamilton v. Randall, 136 Okla. 170, 276 P. 705, this court held:

"The relation of employer and employee is contractual. Like every other contractual relation, it is a product of the meeting of the minds of the contracting parties. To create the relation of employer and employee there must be an express contract, or such acts as will show unequivocally that the parties recognize one another as master and servant. Our Workmen's Compensation Law is remedial in its objects and operation, and should receive a liberal construction in favor of those entitled to its benefits, but before one is entitled thereto, he should be held to strict proof that he is in a class embraced within the provisions of the law and nothing can be presumed or inferred in this respect. (Moore Gleason v. Taylor, 97 Okla. 193, 223 P. 611.)"

See, also, Harris v. Oklahoma Natural Gas Co., 91 Okla. 39,216 P. 116. In El Reno Broom Co. v. Roberts, 138 Okla. 235,281 P. 273, this court said:

"However, even though awards of the Industrial Commission have been and will be sustained upon very slight evidence, it is essential that the claimant be an employee of the respondent within the meaning of the Compensation Act at the time of the injury, and as to whether or not the facts as disclosed by the record establish the existence of the relation of employer and employee within the meaning of the Compensation Law, is one of law for the court."

The record discloses no evidence tending to prove any contractual obligation, agreement, or understanding between the petitioner and Taylor as to the construction of the house, in the construction of which the claimant was injured. The fact that Kirkland was one of the officers of the petitioner corporation in no wise tends to prove that the corporation was engaged in the construction of the house, and the evidence clearly shows that the house was being constructed by Taylor for Kirkland.

For the reason stated, the award is vacated.

RILEY, CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur. LESTER, C. J., CLARK, V. C. J., and HEFNER, J., absent.

On Petition for Rehearing.