Cook Construction Company v. Longcrier , 405 P.2d 165 ( 1965 )

JACKSON, Vice Chief Justice:

This is an original proceeding to review an award of the State Industrial Court in favor of claimant, Vestel O. Longcrier, and against the Cook Construction Company. In this court, the sole proposition argued by petitioner is that “the evidence is insufficient to support the finding that respondent was an employee of Cook Construction Company”. This question was specifically raised before the State Industrial Court; as a matter of fact, it was the only defense urged.

On this jurisdictional question this court will not accept as conclusive the findings of the State Industrial Court, but on review will weigh the evidence relating thereto and make its own independent finding of fact. Smith Brothers Road Construction Co. v. Palmer, Okl, 389 P.2d 495.

At the time of the accident, Longcrier was driving a truck on the Eufaula Reservoir project in Southeastern Oklahoma. He testified that the brakes on the truck failed while he was driving it down a mountain with a load of rock. He “rode” the truck for about half a mile in order to get it through the shop and parking area and then, unable to stop it, jumped from it just before it went into the river.

The only testimony in the record as to whether he was an employee of Cook was given by Longcrier himself. The truck he was driving belonged to a Marion Shipman, from whom Longcrier had leased it. Ship-man owned two trucks that were being used on the Eufaula project; he drove the other one himself. On direct examination Long-crier said that he was an employee of Cook Construction Company; on cross examination he said he was an employee of Ship-man. We find in these contradictory answers no effort on the part of Longcrier to mislead, hut merely a demonstration of the fact that he was not using the word “employee” in any technical legal sense. In lay terminology, he might have been said to he working for either party. In any event the foregoing testimony will not be binding on the courts as a legal conclusion. We therefore look to his other testimony and the lease between him and Shipman for the legal relationship between him and Cook Construction Company, or him and Ship-man.

Longcrier started driving the truck on September 18, 1963. He said “ * * * when I went there and went to work, I didn’t know I would have to have * * * ” a truck lease. The truck lease was not executed till October S, and the accident happened on October 12th. By the terms of the lease, Shipman leased the truck to Longcrier for “as long as agreeable with both parties” and the total consideration recited was one dollar. Shipman agreed to pay all of the maintenance costs, license fees and insurance. Nothing was said in the lease about what work, if any, Long-crier would do with the truck; however, Longcrier testified that the agreement was that he was to receive “one fourth of the truck’s earnings for driving it” and Ship-man was to receive three fourths. As to the mechanics of handling the pay check, Longcrier said that “the whole check was made out to me, and I endorsed it and gave him (Shipman) the check, and he figured my one fourth and paid me”. In reply to questions from the trial judge, Longcrier said that he didn’t think Cook Construction withheld any sums from the pay check for income tax or social security.

From the indefinite term of the lease (“as long as agreeable with both parties”) there can be no doubt that, in practical effect, Shipman could discharge Longcrier at will. On the Eufaula Reservoir project, Longcrier hauled sand and “rip rap” or rock; for sand hauling, payment was on a per hour basis, and for “rip rap” hauling, payment was on a “per yard mile” basis.

In answer to a series of questions, Long-crier testified in effect that employees of Cook Construction Company told him when and where to report for work, what hours to work, when and where to load his truck, whether to haul sand or “rip rap”, and when and where to unload the truck. This testimony was apparently elicited for the purpose of showing the extent of the control exercised by Cook Construction Company over Longcrier. Of course directions from the company as to whether to haul sand or “rip rap” would be just as indicative of a principal-independent contractor relationship as it would be of a master-servant relationship. As to the balance of this testimony, it amounts to no more than evidence that Cook Construction Company exercised control over the work as to time and place. There is no evidence of any other kind of control exercised by the company. In this connection, see Williams v. Branum, 192 Okl. 129, 134 P.2d 352, wherein this court held:

“One who contracts with another to haul gravel at a specified amount per ton, who used his own truck and was free from a supervision, except as to place and time of hauling, held, Independent Contractor and not within the purview of Workmen’s Compensation Act.”

To the same general effect, see Imperial Paving Co. v. Russell, Okl., 308 P.2d 278; Smith Brothers Construction Company v. Palmer, supra; Maryland Casualty Co. v. State Industrial Commission, 148 Okl. 204, 298 P. 275; and Porter Construction Co. v. Burton, 156 Okl. 72, 8 P.2d 64.

From the whole record, it is apparent that: (1) when he first went to work on the Cook Construction Company job, Long-crier had no lease on the truck; (2) the lease itself is little more than a formality, reciting a consideration of only one dollar and being terminable at will by either party; however, it was sufficient, in legal effect, to constitute Longcrier the owner of the truck insofar as the company was concerned; (3) the agreement as to what Longcrier ■ would earn was made between ■him and Shipman, and not between him and Cook Construction Company; (4) payments made by the company, regardless of the basis of computation, were for “the truck’s earnings” and not merely for Long-crier’s wages, and the company had no control over the proportional division of the payments between Shipman and Longcrier; (5) nothing was withheld from the payments by the company for income tax or social security purposes, as would ordinarily be the case if a master-servant relationship existed; and (6) there is no evidence of any kind of control over the work exercised by the company except control as ■to time and place.

In Roberts Truck Service v. Singleterry, Okl., 357 P.2d 217, this court held:

“In determining whether a claimant is an employee, the controlling and decisive test is whether the employer has the right to control the physical details of the work to be done by said claimant.”

As we have seen, control as to time and place is not alone sufficient to determine the question of claimant’s status in his favor.

It is not contended and we do not determine whether Cook Construction Company is secondarily liable for compensation under 85 O.S.1961, § 11.

■ The only case cited in claimant’s brief on :the question of whether he was an employee is State Highway Commission v. Brewer, 196 Okl. 437, 165 P.2d 612. In that case there was competent evidence to support a finding that “ * * * superior control and direction of the manner, method and time of performance of the work * * * ” was retained by the employer, the State Highway Commission. There was .substantially undisputed evidence in that case that claimant had been an admitted employee of the Highway Commission, driving a truck, during the first half of the month of May. As such, he would have been entitled to the protection of the Workmen’s Compensation Act. About the middle of the month, and on the same job, the .claimant began driving a truck belonging to one Welch, from -whom the Highway Commission had “demanded and obtained” an instrument denominated a contract which referred to Welch’as an independent contractor. Thereafter payment was made to • the claimant through Welch. The court found:

“ * * * Not an item of his labor as performed by the respondent for the State Highway Commission, the petitioner herein, prior to his discharge on or about May 15, 1944, was changed by his work with the Welch truck except that the State Highway Commission paid Welch and Welch paid the respondent. The same direction and the same control continued as mhen he mas an admitted employee. * * *"

(Emphasis supplied).

■ There is no such evidence in the case now before us. Here, the evidence is that from the first day on the job he drove the Shipman truck, receiving one fourth of “the truck’s earnings for driving it” pursuant to an agreement with Shipman. In this case, the only evidence of direction and control over the work exercised by Cook Construction Company was control as to the time and place of performance. As held in former decisions, this is not a sufficient showing, on the question of control, to establish Longcrier’s status as that of an employee.

We therefore hold that there was 'insufficient evidence to support the finding that Longcrier was an employee of the Cook Construction Company.

The relationship of employer and employee is an absolute requisite to jurisdiction of the State Industrial Court to enter an award for compensation under the Workmen’s Compensation Act. Anderson et al. v. Dukes, 193 Okl. 395, 143 P.2d 800.

The award is vacated.

HALLEY, C. J., and DAVISON, IRWIN and BERRY, JJ., concur. BLACKBIRD and WILLIAMS, JJ.,dissent.