Opinion
No. 29874.
March 18, 1941.
(Syllabus.)
1. WORKMEN'S COMPENSATION — Statutory provision relative to workmen associating themselves together under agreement to perform particular work not applicable to one merely remunerated out of profits.
The provisions of subdivision 4, section 13350, O. S. 1931, 85 Okla. St. Ann. § 3, subdivision 4, relative to workmen associating themselves together under an agreement to perform a particular piece of work, is not applicable to one who is merely remunerated out of the profits and is not otherwise interested in the enterprise.
2. PARTNERSHIP — Essentials of partnership inter sese.
In order to constitute a partnership inter sese there must be: (1) An intent to form the same; (2) generally, a participating in both profits and losses; (3) and such a community interest, as far as third persons are concerned, as enables each party to make contracts, manage the business, and dispose of the property; where the agreement does not contain these essential elements, it does not constitute a partnership. Utility Coal Co. v. Rogez, 170 Okla. 264, 39 P.2d 60.
3. SAME — Evidence that son who worked for father was paid with share of gross profits held insufficient to show partnership.
Evidence that a son, working for his father, received as remuneration for his services a share in the gross profits and had no other interest in the business is insufficient to show a partnership.
4. WORKMEN'S COMPENSATION — Employer held an independent contractor and liable for payment of compensation though remuneration of injured workman was share of gross profits from contract.
In a compensation proceeding, where the State Industrial Commission is called upon to determine liability and extent of disability of an injured workman and finds that the purported employer was engaged in the performance of a contract which he had undertaken to perform in his own name, and with his own tools, and in his own manner, and with help of his own selection, and free from any control or direction from the person with whom said contract was made, and assumed no responsibility other than the result to be obtained, the commission may properly find that such person is an independent contractor and that the persons working for him, even though their remuneration is a share of the gross profits under the contract, are employees entitled to the protection afforded workers in hazardous employments if they are otherwise entitled to claim such compensation.
Original proceeding in the Supreme Court by Ross Smittle to obtain a review of award made by the State Industrial Commission in favor of John Rutherford. Award sustained.
M.O. Hart, of Tulsa, for petitioner.
J.B. Houston, Parke Davis, and A.M. Covington, all of Tulsa, Pierce Rucker, of Oklahoma City, and Darwin C. Smith, of Tulsa, and Mac Q. Williamson, Atty. Gen., for respondents.
Ross Smittle, hereinafter referred to as petitioner, seeks in this proceeding to obtain a review of an award which was made by a trial commissioner and on appeal affirmed by the State Industrial Commission in favor of John Rutherford, hereinafter referred to as respondent.
The record shows that I. Oberlander was the owner of an oil and gas lease, and that he made a contract with the petitioner whereunder the latter agreed to pull certain rods and tubing from a well located on said lease for a stipulated consideration and with his own tools, equipment, and help and free from any direction or control on the part of the said I. Oberlander. The respondent, together with petitioner's son and petitioner, were engaged in the performance of the work contemplated under said contract when respondent sustained an accidental personal injury. The nature and extent of said injury is not here in issue. The respondent filed employee's first notice of injury and claim for compensation with the State Industrial Commission and named as his employers Ross Smittle and I. Oberlander. As the result of hearings held to determine liability and extent of disability, the trial commissioner found that the petitioner was an independent contractor and engaged in a hazardous employment and that respondent was his employee, and thereupon awarded compensation for temporary total and permanent partial disability which resuited from respondent's injury. The commissioner further found that the liability of the petitioner was primary and that of I. Oberlander and his insurance carrier wholly secondary.
The petitioner contends that the commissioner should have found that the respondent was an associated workman or else that he was the sole employee of the partnership of Smittle and Smittle, and therefore held to be in the first instance an employee of I. Oberlander exclusively under the authority of subdivision 4, section 13350, O. S. 1931, 85 Okla. St. Ann. § 3, subd. 4; Newblock v. Casey, 185 Okla. 515, 95 P.2d 106; Twin State Oil Co. v. Shipley, 113 Okla. 3, 236 P. 578; Dixon Casing Crew v. State Industrial Commission, 108 Okla. 211, 235 P. 605, or else should have denied an award on the authority of section 13351, O. S. 1931, 85 Okla. St. Ann. § 11; South Oklahoma Town Co. v. Acree, 166 Okla. 110, 26 P.2d 404; Deatherage Renfro v. Storey, 158 Okla. 285, 13 P.2d 124.
We are unable to agree with either of the contentions so made. At the hearings held to determine liability the petitioner endeavored to show that the respondent, petitioner, and his son were engaged in a common enterprise, but his evidence wholly failed to establish this contention, since it disclosed that petitioner was the owner of all of the tools and equipment, made all contracts, assumed all responsibility, paid all bills by his own check, including the wages of respondent and those of petitioner's son, and that the only basis upon which petitioner's claim rested was that the respondent was to receive as his remuneration one-fourth of the gross profits derived from each contract. Under the evidence we are of the opinion that the State Industrial Commission was fully justified in finding that petitioner was an independent contractor. See Oklahoma Publishing Co. v. Greenlee, 150 Okla. 69, 300 P. 684; Getman-Mac-Donell-Summers Drug Co. v. Acosta, 162 Okla. 77, 19 P.2d 149; Southland Cotton Oil Co. v. Pritchett, 167 Okla. 6, 27 P.2d 819. The provisions of the statute, supra, relative to associated workmen has application only where the facts show that the parties are all equally interested in the performance of the work and are in effect what they purport to be, that is, workmen who merely associate themselves for the purpose of co-operating and performing a particular type of work. An entirely different situation from that is presented here.
The evidence also negatives the claim of a partnership between the petitioner and his son, the most that can be said in respect thereto being that the son was to receive as his remuneration a percentage of the gross profits of the business. As said in Utilities Coal Co. v. Rogez, 170 Okla. 264, 39 P.2d 60:
"In order to constitute a partnership inter sese there must be: (1) An intent to form the same; (2) generally, a participating in both profits and losses; (3) and such a community interest, as far as third persons are concerned, as enables each party to make contracts, manage the business, and dispose of the property; where the agreement does not contain these essential elements, it does not constitute a partnership."
The fact that the person receives as his remuneration a share of the profits of an enterprise is not sufficient of itself to make such person a partner therein. See 39 C. J. p. 37; S. P. Martin Co. v. O'Connor, 120 Okla. 92, 250 P. 529.
There is an entire absence of any evidence of any employment by the respondent by any partnership. On the contrary, the petitioner's own evidence discloses the fact that respondent was paid by his personal checks, and that in all of the transactions he was acting in his individual capacity. The finding of the State Industrial Commission is supported by competent evidence and is not erroneous as a matter of law.
Award sustained.
WELCH, C. J., CORN, V. C. J., and RILEY, BAYLESS, GIBSON, HURST, and DAVISON, JJ., concur. OSBORN and ARNOLD, JJ., absent.