BING AMAN, J.
This action was brought by plaintiffs, Clarvel D. Lon-dagin and Commercial Standard Insurance Company, against Fred McDuff. The action was for damages for personal injuries suffered by Londagin, because of the alleged negligence of the defendant, McDuff, his agents and employees, and by Commercial Standard Insurance Company to recover workmen’s compensation payments made by it to Londagin. The trial court sustained defendant’s plea to the jurisdiction, holding that under authority of Mid-Continent Pipe Line Co. v. Wilkerson, 200 Okla. 335, 193 P. 2d 586, and Deep Rock Oil Corp. v. Howell, 200 Okla. 675, 204 P. 2d 282, the court was without jurisdiction over the subject matter of the action under the allegations of plaintiffs’ petition. Plaintiffs appeal.
The record consists of the petition filed by plaintiffs, a plea to the court’s jurisdiction by defendant, and the judgment. The plea asserts the allegations of the petition show the injury complained of arose under employment and business covered by the Workmen’s Compensation Law, and that therefore the trial court had no jurisdiction over the subject matter of the action. The only reference or recitals as to the facts and circumstances surrounding the injuries to plaintiff Londagin, and the terms and conditions of his employment, are found in the petition. Therein it is alleged that the defendant is a citizen of Oklahoma, residing in Seminole county; that Hunsaker Trucking Company is a truck line engaged in the hauling of oil field equipment and is a common carrier for hire, operating under a class “B” permit from the Corporation Commission of Oklahoma, and an irregular route common carrier certificate from the Interstate Commerce Commission, with tariffs on file with both bodies; that on November 1, 1946, the truck company was engaged in hauling oil field equipment and supplies from Duncan, Oklahoma, to the truck yard and place of business of the defendant, and that one of the trucks was driven by Londagin, who was an employee of Hunsaker Trucking Company. The petition further alleges that while the trucks were in Fred McDuff’s yard being unloaded by the employees of the trucking company, under the direction and instruction of McDuff’s manager, Londagin was injured by the negligence and carelessness of said manager, and some other of the defendant’s employees, who were assisting in the unloading operations. It states further the nature and extent of Londagin’s injuries and his hospital expenses, and asks for damages for his injuries and for the pain and suffering endured by him by reason thereof.
It further alleges that Commercial Standard Insurance Company carried workmen’s compensation upon Hunsaker Trucking Company and its employees, and that it paid out in hospital expenses and compensation by order of the State Industrial Commission the sum of $8,717.10, which it seeks to recover from McDuff.
Plaintiffs here contend that from the record in this case it is apparent that Hunsaker Trucking Company was not an independent contractor within the meaning of that term as used in 85 O. S. 1941 §11, which makes the employer of an independent contractor secondarily liable for injuries to employees of an independent contractor, since the work or service performed by Hunsaker Trucking Company was not an integral part of the defendant’s business, but was merely incidental thereto. In support of this assertion they cite the decisions in Chickasha Cotton Oil Co. v. Strange, 186 Okla. 136, 96 P. 2d 316; Amerada Petroleum Corp. v. Vaughan, 200 Okla. 226, 192 P. 2d 639; Sears-Roebuck Co. v. Wallace, 172 F. 2d 802, and other authorities. They further urge that the provisions of section 11 have no application to common carriers, since it is not the [596]*596duty of the principal employer to see to it that common carriers or public utilities comply with the Workmen’s Compensation Act, when such common carriers or public utilities perform services for him.
We are unwilling to concede that a trucking company operated for hire, which, by law, is required to obtain a permit to transact such business, can never under any circumstances be an independent contractor. In Colvin v. Chapman, 190 Okla. 214, 122 P. 2d 158, we held that a class “B” carrier was an independent contractor. But we consider it unnecessary to determine the questions urged by plaintiffs, since the petition does not conclusively negative the existence of other facts which might entitle the plaintiff Londagin to maintain a common law action for his injuries. It is silent as to certain facts which, if same exist and were properly alleged, would entitle him to maintain such action and give the trial court jurisdiction.
In the first place the petition does not state that Hunsaker Trucking Company was employed by defendant to haul the material to his yard. The trucking company might have been employed by the seller of the property, in which event Londagin and the agents and servants of the defendant would not be persons in the same employ, and the defendant would be a third person within the purview of 84 O. S. 1941 §44; Parkhill Truck Co. v. Wilson, 190 Okla. 473, 125 P. 2d 203. In such case the trial court would be vested with jurisdiction to try the case.
In the second place, the allegations of plaintiffs’ petition do not show whether McDuff was engaged in a hazardous business or occupation, or whether he carried compensation insurance covering his own employees. Since the petition alleges that the unloading operations in which plaintiff Londagin was injured were carried on under the instruction and direction of the defendant’s yard manager, the proof in this connection might be sufficient to show that plaintiff, Londagin, was for the time being the servant of McDuff. See Manahan Drilling Co. v. Wallace, 179 Okla. 613, 67 P. 2d 1; Snetcher & Pittman v. Talley, 168 Okla. 280, 32 P. 2d 883.
If Londagin was the servant of Mc-Duff under the rule announced in the above-cited authorities, and if McDuff was engaged in a hazardous business and did not carry compensation insurance, then, under the provisions of 85 O.S. 1941 §12, Londagin would have had the right to maintain a common-law action for damages for his injuries, and the trial court would have jurisdiction thereof.
In Board of Trustees of Firemen’s Relief and Pension Fund v. Brooks, 179 Okla. 600, 67 P. 2d 4, we pointed out that if the court had jurisdiction over the parties to the action and the cause was of a kind triable in such court, it had jurisdiction of the subject of the action. In that case we further said:
“To say that the court has jurisdiction of a cause is not equivalent to saying that as a matter of law the allegations of the petition are sufficient to entitle the plaintiff to the relief prayed for. The court exercises its jurisdiction by deciding all questions of law and determining all issues of fact which the pleadings or the evidence or both may present for its determination and by granting or denying, in whole or in part, the relief which is prayed for.”
The same rule is stated in 21 C. J. S. p. 42, §33. There the author states that if the complaint sets forth a case belonging to the general class over which the authority of the court extends, the fact that it fails to state a cause of action does not affect the jurisdiction of the court. But the author states that where the pleadings show on their face that the court has no jurisdiction of the subject matter then it should refuse to take jurisdiction.
[597]
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BING AMAN, J.
This action was brought by plaintiffs, Clarvel D. Lon-dagin and Commercial Standard Insurance Company, against Fred McDuff. The action was for damages for personal injuries suffered by Londagin, because of the alleged negligence of the defendant, McDuff, his agents and employees, and by Commercial Standard Insurance Company to recover workmen’s compensation payments made by it to Londagin. The trial court sustained defendant’s plea to the jurisdiction, holding that under authority of Mid-Continent Pipe Line Co. v. Wilkerson, 200 Okla. 335, 193 P. 2d 586, and Deep Rock Oil Corp. v. Howell, 200 Okla. 675, 204 P. 2d 282, the court was without jurisdiction over the subject matter of the action under the allegations of plaintiffs’ petition. Plaintiffs appeal.
The record consists of the petition filed by plaintiffs, a plea to the court’s jurisdiction by defendant, and the judgment. The plea asserts the allegations of the petition show the injury complained of arose under employment and business covered by the Workmen’s Compensation Law, and that therefore the trial court had no jurisdiction over the subject matter of the action. The only reference or recitals as to the facts and circumstances surrounding the injuries to plaintiff Londagin, and the terms and conditions of his employment, are found in the petition. Therein it is alleged that the defendant is a citizen of Oklahoma, residing in Seminole county; that Hunsaker Trucking Company is a truck line engaged in the hauling of oil field equipment and is a common carrier for hire, operating under a class “B” permit from the Corporation Commission of Oklahoma, and an irregular route common carrier certificate from the Interstate Commerce Commission, with tariffs on file with both bodies; that on November 1, 1946, the truck company was engaged in hauling oil field equipment and supplies from Duncan, Oklahoma, to the truck yard and place of business of the defendant, and that one of the trucks was driven by Londagin, who was an employee of Hunsaker Trucking Company. The petition further alleges that while the trucks were in Fred McDuff’s yard being unloaded by the employees of the trucking company, under the direction and instruction of McDuff’s manager, Londagin was injured by the negligence and carelessness of said manager, and some other of the defendant’s employees, who were assisting in the unloading operations. It states further the nature and extent of Londagin’s injuries and his hospital expenses, and asks for damages for his injuries and for the pain and suffering endured by him by reason thereof.
It further alleges that Commercial Standard Insurance Company carried workmen’s compensation upon Hunsaker Trucking Company and its employees, and that it paid out in hospital expenses and compensation by order of the State Industrial Commission the sum of $8,717.10, which it seeks to recover from McDuff.
Plaintiffs here contend that from the record in this case it is apparent that Hunsaker Trucking Company was not an independent contractor within the meaning of that term as used in 85 O. S. 1941 §11, which makes the employer of an independent contractor secondarily liable for injuries to employees of an independent contractor, since the work or service performed by Hunsaker Trucking Company was not an integral part of the defendant’s business, but was merely incidental thereto. In support of this assertion they cite the decisions in Chickasha Cotton Oil Co. v. Strange, 186 Okla. 136, 96 P. 2d 316; Amerada Petroleum Corp. v. Vaughan, 200 Okla. 226, 192 P. 2d 639; Sears-Roebuck Co. v. Wallace, 172 F. 2d 802, and other authorities. They further urge that the provisions of section 11 have no application to common carriers, since it is not the [596]*596duty of the principal employer to see to it that common carriers or public utilities comply with the Workmen’s Compensation Act, when such common carriers or public utilities perform services for him.
We are unwilling to concede that a trucking company operated for hire, which, by law, is required to obtain a permit to transact such business, can never under any circumstances be an independent contractor. In Colvin v. Chapman, 190 Okla. 214, 122 P. 2d 158, we held that a class “B” carrier was an independent contractor. But we consider it unnecessary to determine the questions urged by plaintiffs, since the petition does not conclusively negative the existence of other facts which might entitle the plaintiff Londagin to maintain a common law action for his injuries. It is silent as to certain facts which, if same exist and were properly alleged, would entitle him to maintain such action and give the trial court jurisdiction.
In the first place the petition does not state that Hunsaker Trucking Company was employed by defendant to haul the material to his yard. The trucking company might have been employed by the seller of the property, in which event Londagin and the agents and servants of the defendant would not be persons in the same employ, and the defendant would be a third person within the purview of 84 O. S. 1941 §44; Parkhill Truck Co. v. Wilson, 190 Okla. 473, 125 P. 2d 203. In such case the trial court would be vested with jurisdiction to try the case.
In the second place, the allegations of plaintiffs’ petition do not show whether McDuff was engaged in a hazardous business or occupation, or whether he carried compensation insurance covering his own employees. Since the petition alleges that the unloading operations in which plaintiff Londagin was injured were carried on under the instruction and direction of the defendant’s yard manager, the proof in this connection might be sufficient to show that plaintiff, Londagin, was for the time being the servant of McDuff. See Manahan Drilling Co. v. Wallace, 179 Okla. 613, 67 P. 2d 1; Snetcher & Pittman v. Talley, 168 Okla. 280, 32 P. 2d 883.
If Londagin was the servant of Mc-Duff under the rule announced in the above-cited authorities, and if McDuff was engaged in a hazardous business and did not carry compensation insurance, then, under the provisions of 85 O.S. 1941 §12, Londagin would have had the right to maintain a common-law action for damages for his injuries, and the trial court would have jurisdiction thereof.
In Board of Trustees of Firemen’s Relief and Pension Fund v. Brooks, 179 Okla. 600, 67 P. 2d 4, we pointed out that if the court had jurisdiction over the parties to the action and the cause was of a kind triable in such court, it had jurisdiction of the subject of the action. In that case we further said:
“To say that the court has jurisdiction of a cause is not equivalent to saying that as a matter of law the allegations of the petition are sufficient to entitle the plaintiff to the relief prayed for. The court exercises its jurisdiction by deciding all questions of law and determining all issues of fact which the pleadings or the evidence or both may present for its determination and by granting or denying, in whole or in part, the relief which is prayed for.”
The same rule is stated in 21 C. J. S. p. 42, §33. There the author states that if the complaint sets forth a case belonging to the general class over which the authority of the court extends, the fact that it fails to state a cause of action does not affect the jurisdiction of the court. But the author states that where the pleadings show on their face that the court has no jurisdiction of the subject matter then it should refuse to take jurisdiction.
[597]*597The instant case is an action for personal injuries due to the negligence of the defendant, a class of cases of which the court has jurisdiction. The fact that the petition fails to state sufficient facts to state a cause of action against the defendant does not divest the court of jurisdiction, but the petition would be vulnerable to demurrer on that ground. We think that the question of jurisdiction of the subject matter of the action may not be definitely determined in the absence of any allegation in the petition relative to the hiring of the trucking company by Mc-Duff, if it was in fact employed by him, and the nature of his business, and, if that business was hazardous, whether he carried compensation insurance.
Since the allegations of the petition are silent upon the existence of the facts above set forth, and do not definitely and completely foreclose the possibility of either of the contingencies heretofore mentioned, it follows that the trial court erred in sustaining the plea of defendant to the jurisdiction of the trial court.
Reversed.
ARNOLD, C.J., HALLEY, V.C.J., and CORN and O’NEAL, JJ., concur. WELCH, GIBSON, DAVISON, and JOHNSON, JJ., dissent.