The relation of employer and employee is a first prerequisite to any award under the compensation act, and such relation is created by contract, either express or implied, or by the unequivocal acts of the parties recognizing the relationship. See also McCowan v. Ford, 495 P.2d 1283 (Okla. 1972); Smith's Estate v. Hearon, 424 P.2d 970 (Okla. 1967); Mahl v. McMahan, 325 P.2d 78 (Okla. 1958); El Reno Broom Co. v. Roberts, 138 Okla. 235, 281 P. 273 (1929); Moore Gleason v. Taylor, 97 Okla. 193, 223 P. 611 (1924); Landrum v. Ownby, supra. Petitioner contends a contract of employment was implied between petitioner and respondents Altus and Davis because the latter profited on the project. We find no authority for the proposition that the making of a profit on a project by someone necessarily creates an implied contract of employment between the latter and one who has worked on the project.

However, the decisive test for determination of whether an employer and employee relationship existed is whether the employer retained a right of control and superintendence of the work. Mahl v. McMahan, Okla., 325 P.2d 78; Parten v. State Industrial Court, Okla., 496 P.2d 114. The principal argument rests upon the claim that wages were received for labor performed on the day of injury.

* * *" The above case was cited with approval in Hattabaugh v. B.H. W. Mining Co., 204 Okla. 464, 230 P.2d 923, and in Mahl v. McMahan, Okla., 325 P.2d 78, we find this language: "Claimant argues that since the trial commissioner sustained a demurrer to the evidence, under the rule announced in Empire Oil Refining Co. v. Williams, 184 Okla. 172, 86 P.2d 291, it is necessary to disregard all the evidence in favor of respondents and consider only testimony favorable to claimant.

Claimant contends the relationship of employer-employee between petitioner and claimant was established because petitioner or its agents supervised the loading, weighing and unloading the rock and Harrison-Gibbs, in acting as the hiring agent of petitioner, hired claimant and informed him when the crusher was in operation and the number of trucks needed and whether claimant should haul rock at a certain time or whether he should not. In Mahl v. McMahan, Okla., 325 P.2d 78, we held that the relationship of employer and employee is a first prerequisite to any award under the compensation act, and such relationship is created either by contract, express or implied, or by the unequivocal acts of the parties recognizing the relationship. In Smith v. Crotts, Okla., 336 P.2d 1103, we held:

One who invokes the benefit of the Act has the burden to establish by strict proof that at the time of his accidental injury he did in fact occupy the status of an employee in relation to the person against whom a claim is asserted. Mahl v. McMahan, Okla., 325 P.2d 78; Nichols v. State Industrial Commission, 207 Okla. 167, 248 P.2d 616. Where the relationship of employer and employee forms a disputed issue on review of a decision made by the State Industrial Court, the Supreme Court will weigh the evidence adduced below and undertake an independent examination of both law and facts to establish the existence or absence of such relation.

We are of the opinion that the use of a hydraulic hoist in connection with the services of this filling station does not sustain the commission's finding that Skelly was operating a workshop. This court in reviewing an award of the State Industrial Commission concerning a jurisdictional question, will weigh the evidence relating thereto and make its own independent findings of fact. Mahl v. McMahan, Okla., 325 P.2d 78; Williams v. Branum, 192 Okla. 129, 134 P.2d 352. In view of the above we find that claimant was not employed in a hazardous employment under 85 O.S. 1951 §§ 2[ 85-2], 3 [ 85-3] and 11 [ 85-11], and that the award should be vacated.

Id. However, the decisive test for determination of whether an employer and employee relationship exists is not the existence of a payment agreement in advance, but rather, whether the alleged employer retains a right of control and superintendence of the work performed. Clark, supra; Parten v. State Industrial Court, 496 P.2d 114 (Okla. 1972); Mahl v. McMahan, 325 P.2d 78 (Okla. 1958). This same test was used in Attorney General Opinion No. 80-263, in responding to a similar question about volunteers posed by the Tourism and Recreation Department. The concerns raised therein are applicable to your initial inquiry, and the response to your question the same — each case must be resolved on its own merits.