111 P.2d 175 | Okla. | 1941
This is an original proceeding to review an order of the State Industrial Commission instituted by Herbert Burrows, hereinafter referred to as claimant, denying compensation for an injury sustained by him on October 17, 1939. He contends that at the time of the injury he was in the joint employ of Jones Spicer, Inc., and the Magnolia Petroleum Company. These parties will be referred to as respondents.
No contention is made with regard to the fact of the injury. The nature and extent of the disability are not involved, and therefore will not be discussed.
The Industrial Commission found that on the date of the injury claimant was in the employ of Jones Spicer, Inc., which company was a class B motor carrier, and therefore not engaged in a hazardous occupation subject to and covered by the Workmen's Compensation Law, and that on the date of the injury claimant was not in the employ of the Magnolia Petroleum Company. Both of these findings are challenged by the claimant.
It appears that, on the date of the injury, claimant had been in the employ of Jones Spicer, Inc., for more than two years; that he was what is known as a "swamper" on a truck; that his wages were 40 cents per hour; that on the date of the injury an official of the Magnolia Petroleum Company came to the office of Jones Spicer and made an oral contract with said company for the use of a truck and two men to tear down and stack a drilling rig on a Magnolia lease. Claimant testified that he did not know the exact terms of this agreement, but did know that his company was to be paid by the hour and was to do whatever was necessary or directed to be done by the Magnolia Petroleum Company; that pursuant to said agreement he and a fellow employee went to the lease of Magnolia Petroleum Company not far from Wewoka; that under the direction of an official of the Magnolia Petroleum Company he helped straighten up certain material which was located near the rig that was being dismantled; that thereafter they started the dismantling and stacking of the drilling rig; that no official *524 of Jones Spicer was present; that about 3 o'clock in the afternoon the farm boss of the Magnolia Petroleum Company ordered claimant and his fellow employee to go to another point on the lease and do some other work; that after the performance of this work they returned to their original duty of dismantling and stacking the rig; that while in the performance of this duty claimant sustained the injury complained of in this case; that at the time of the injury the superintendent of Magnolia Petroleum Company had gone home and no one was present except the fellow employee of claimant and the night watchman, who was in charge of the lease. Claimant testified in detail with regard to the method used in dismantling and stacking the drilling rig. He testified that a five-ton truck equipped with long gin poles was used; that as the rig was being dismantled, it was picked up by the truck and gin poles and moved approximately 150 feet, where it was stacked. The witness testified that Jones Spicer had no contract to move or haul the rig that was being dismantled; that he did not know who did haul it, but that he did know that his company (Jones Spicer) did not haul it at that time.
We have held that whether there is sufficient showing by the evidence to establish the relationship of employer and employee is a matter for review by this court, Manahan Drilling Co. v. Wallace,
The commission further found that claimant was an employee of Jones Spicer, but found that said employer was a class B motor carrier not coming within the terms of the Workmen's Compensation Law. Numerous cases hold that said carriers are not so covered. Chickasha Cotton Oil Co. v. Strange,
We deem it to be well settled that under the provisions of the Workmen's Compensation Law an employer may conduct different departments of business, some of which are within the provisions of the act and some of which are not within the provisions of the act. Leeway Stage Lines v. Simmons,
The question of whether or not a particular employment is covered by the Workmen's Compensation Law is a jurisdictional question. The findings of the Industrial Commission thereon are not conclusive, and upon a review thereof this court will weigh the evidence and make its own independent findings of fact with relation thereto. McKeever Drilling Co. v. Egbert,
Accordingly, the order is vacated and the cause remanded, with directions to the commission to proceed not inconsistent with the views herein expressed.
WELCH, C. J., CORN, V. C. J., and RILEY, BAYLESS, GIBSON, DAVISON, and ARNOLD, JJ., concur. HURST, J., absent.