104 P.2d 443 | Okla. | 1940
This is an original proceeding in this court brought by O.B. Reeves, hereafter referred to as petitioner, to obtain a review of an order made by the State Industrial Commission which denied, for jurisdictional reasons, a claim for compensation against Muskogee Cotton Oil Company, hereafter referred to as respondent, and its insurance carrier.
The petitioner was the owner and operator of a cotton gin, which was mortgaged to the respondent. On October 7, 1937, while making some repairs on machinery in said gin, the petitioner sustained an accidental personal injury which confined him to the hospital for several months. The petitioner filed with the State Industrial Commission a claim for compensation under the provisions of the Workmen's Compensation Act (O. S. 1931, § 13348 et seq., as amended, 85 Okla. St. Ann. § 1, et seq.). The respondent challenged the jurisdiction of the *540 State Industrial Commission to make any award for the reason that the relation of employer and employee did not exist. The State Industrial Commission, after hearing the evidence of the parties, made and entered an order on July 27, 1938, wherein it found that the relation of employer and employee did not exist between the respondent and petitioner and denied compensation. On application of petitioner the aforesaid order was vacated under date of August 13, 1938, and further argument of counsel heard by the commission. Thereafter, on January 13, 1939, the State Industrial Commission reinstated the order of July 27, 1938, in its entirety.
The petitioner contends that the State Industrial Commission erred as a matter of law in holding that he was not an employee of the respondent and therefore entitled to an award of compensation under the Workmen's Compensation Act.
The sole issue presented is one of law (Mastin v. Black,
This court in a long line of decisions has held that in order to create the relation of employer and employee there must exist either an express or implied contract between the parties to that effect, or else such acts on their part must appear as will show unequivocally that *541
the parties recognize the existence of such relation. Snetcher Pittman v. Talley,
"One of the tests to determine whether a person is an employee of another is to ascertain whether, at the time the injury was suffered, the other was subject to such person's order and control and was liable to be discharged for disobedience of orders or misconduct."
Weighed in the light of the foregoing decisions the evidence of petitioner wholly failed to show any relation of employer and employee between the petitioner and the respondent. On the contrary, we are of the opinion that the same shows clearly that the relation was that of creditor and debtor and that the payment of the drafts by the respondent was merely a discharge of its obligation to the petitioner to finance his operations and nothing more, and that the notations shown on the drafts were of no concern to the respondent, but were merely for the convenience of the petitioner in keeping books. In other words, the evidence shows that the respondent was merely acting as the banker for the petitioner.
There being absent the primary requisite to an award, to wit, the relation of employer and employee, the State Industrial Commission proceeded properly when it denied compensation.
Order sustained.
BAYLESS, C. J., WELCH, V. C. J., and RILEY, OSBORN, HURST, DAVISON, and DANNER, JJ., concur. CORN and GIBSON, JJ., absent.