Ohio Drilling Co. v. State Industrial Commission

1922 OK 156, 207 P. 314, 86 Okla. 139, 25 A.L.R. 367, 1922 Okla. LEXIS 126

• Court: Supreme Court of Oklahoma
• Decided: May 2, 1922
• Docket: 12933
• Status: Published

Opinion

JOHNSON, J.

The petitioners seek by petition to this court, with a transcript of the proceedings had before the State Industrial Commission attached to such petition, a review by this court o,f the following award made to the claimant, C. D. Hupp, to wit:

“Now on this 7th day of December, 1921, this cause comes on to be determined on the claimant’s claim for compensation for an injury which he alleged occurred to him while in the employment of the Ohio Drilling Company on the 22nd day of September. 1920, near 'Slick, Okla., and the commission having considered the testimony taken at a regular hearing at Cushing, Okla., on the 22nd day of November, 1921, before a member of the commission, at which hearing the claimant appeared in person and the respondent and insurance carrier were represented by H. M. West, and having all the records on file in said cause and being otherwise well and sufficiently advised in the premises finds the following fficts:

“1. That the claimant herein was in the employment of the Ohio Drilling Company and was engaged in a hazardous occupation ' within the meaning of the statute, and that while in the employment of said respondent and in the course of his employment the 'claimant received an accidental injury on the 22nd day of September, 1920;

“2. That as a result of said accident the claimant suffered the loss of the use of the index finger on the left hand;

“3. That the respondent had proper notice of said accident and the employe filed his claim for compensation with the commission within the statutory period;

“4. That the claimant's average wage-at the time of his injury was $14 per day.

“The commission is therefore of the opinion : That by reason of the aforesaid facts the claimant is entitled under the law of compensation at the rate of $18 per week for a period of 35 weeks.

“It is therefore ordered: That within ten-days from this date the Ohio Drilling Company, or the Aetna Life Insurance Compa- juy, pay to the claimant compensation computed from the 22nd day of September, 1920, at the rate of $18 per week, and continue said payments weekly for a period of 85 weeks until the sum of $630 is paid, and also pay all medical expenses incurred toy said claimant as a result of said accident.”

The petitioner’s assignments of error are:

“(1) There was no evidence submitted to the commission which warranted commission in finding that the claimant was an employe of the Ohio Drilling Company, and such finding by the commission was unwarranted, and has no basis in the evidence offered before the commission, and could not be found as a fact, there being no evidence introduced which made it legally possible for the commission so to find.

“(2) The evidence at the hearing conclusively established that the claimant was no't an employe of the Ohio Drilling Company, and that the said Ohio Drilling Company was a co-partnership, and that the said C. D. Hupp was one of the members of such co-partnership.

“(3) That the only finding that the commission had a legal right to make, in view of the evidence offered before it, was that the claimant, C. D. Hupp, was not an employe of the Ohio Drilling Company, and that the Ohio Drilling Company was a co-partnership and that said C. D. Hupp was one of the co-partners.

“Wherefore, upon final determination, petitioners pray that such award or decision be reversed and vacated.”

Concerning these assignments of error, counsel for petitioners say in their brief:

“This is an appeal from an order of the State Industrial Commission, awarding compensation to C. D. Hupp on account of an injury sustained by him. The commission found that Hupp was an employe of the Ohio Drilling Company, and that while so employed he was injured, and entitled to compensation, and the Ohio Drilling Company and the Aetna Life Insurance Company, the insurance carrier, were ordered to pay the compensation awarded. It was contended at the hearing before the commission that Hupp wias not an employe of the Ohio Drilling Company, but that the Ohio Drilling Company was a co-partnership and that Hupp was one of such co-partners. The commission found that Hupp was an employe of the Ohio Drilling Company, and awarded certain compensation.

“This appeal was perfected to review such decision on the ground that the finding of the commission to the effect that Hupp was an employe, was without any support whatever in the evidence.

“We understand that the law is that if there is any evidence whatever to support the commission’s finding, it is conclusive as to any question of fact. It is our contention, however, that there was absolutely no evidence upon which the commission could base the finding.”

It is perfectly clear that the evidence of the claimant, which was the only evidence introduced ■ upon the subject, showed that the Ohio Drilling Company was a co-partnership, and that Hupp was one of the partners. It is true that the claimant, in response to the second question asked him, which was as to for whom he was working at the time of the injury, answered such question by saying that he was working for the Ohio Drilling Company. He makes perfectly clear, however, in his evidence that the Ohio Drilling Company was a co-partnership composed of himself, B. W. Hupp, John Lowry, and Billy Coon; that these four men owned the tools and participated equally in the profits; that they each took out $14 per day until the tools were paid out; that the four partners were ■the only employes of the partnership.

Counsel cite in support of their contention the decision of the Industrial Commission of this state in the case of Albert G. Kirby v. New Model Laundry Company, Aetna Life Insurance Company, insurance carrier, No. 691, Okla. Ind. Com. Rep., Vol. 1, page 62, where in the syllabus the commission said:

“Under the AVorkmen’s Compensation Law of Oklahoma, a member of the partnership who works as a driver of an automobile delivery wagon for &’aid partnership and while so engaged fractures his arm is not an employe within the meaning of the act. Compensation denied.”

In the body of the opinion in this case, it w«as stated as follows:

“The commission has not been favored by any briefs in this case, and we have been unable to find any American cases on this proposition. The British act, in defining employer and employe, is similar to ours, and we have found a number of British cases construing their law. In the case of Ellis v. Ellis & Co. (1905 ) 92 L. T. 718, 7 W. C. C. 97, it was held: ‘AYhen partners entered into 'an agreement that one of their number should act as a working foreman and he received 33s a week for his services as such in addition to his share of the profits, it was held that his widow was not entitled to compensation from the other partners because of the death of such foreman partner by accident, as he was not a workman within the meaning of the act.*’

Counsel have cited no other eases in support of their contention, and we know of none, and it is apparent in the instant case that the Industrial Commission has reversed itself and thereby refuses to follow its decision in the Kirby case, supra.

We are constrained to approve th.e holdings of the commission in the instant case.

Section 2, ,of art. 1, of the Workmen’s Compensation Act (ehápter 246, Session Laws 1915, as amended by chapter 14, section 2, Session Laws 1919), provides compensation shall be payable for injuries sustained by employes engaged in hazardous employment, which include the business of drilling wells by machinery, and subdivision' 1, section 2, of chapter 14, provides that hazardous employment shall mean manual or technical mechanical work or labor connected with or incident to, one of the industries named in section 2. And subdivision 3, of see. 3, art. 1, of chapter 246, Session Laws 1915, provides that “employer,” except where otherwise expressly stated, means a business partnership, association, corporation and legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association, corporation, employing workmen in hazardous employments, and shall include the state, county, city, or any municipality when engaged in a hazardous work within the meaning of this act in which workmen are employed for wages.

Subdivision 4 provides “employe” means any person engaged in manual or mechanical work, in the employment of any person, firm or corporation carrying on a business covered by the terms of this act.” Section 1, of article 3, of chapter 246 of Session. Laws 1915, as amended by section 1. at page 22, chap. 14, Session Laws, 1919, provides that “an employer shall secure compensation to his employes in one of the following ways: (a) By insuring and keeping insured the payment of such compensation,” by some one of the character of the insurance companies named in the section.

The Workmen’s Compensation Law, chapter 246, 'Session Laws 1915, has been uniformly held valid by. this court against all attacks made upon it upon constitutional or other grounds. The reasons therefor were given in detail and at great length by this court in the dase of Adams v Iten Biscuit Company, 63 Okla. 52, 162 Pac. 938, In an exhaustive opinion by Hardy J., and in Wick et al. v. Gunn et al., Lid., v. Cook et al., 79 Okla. 282, 393 Pac. 36, and many oilier decisions of this court might be cited to the same effect. Likewise the act amen-datory of the original act, chapter 14, Session Laws 1919, has been sustained by this court, and a very recent ease is that of Missouri Valley Bridge Co. v. State Industrial Commission, decision April 25, 1922, 86 Okla.— , 207 Pac. 562, in which it was held, among other things, that the decision of the State Industrial Commission is made final as to all questions of fact, and on appeal to this court from an award of the Industrial Commission the court is without jurisdiction to weigh the evidence for the purpose of determining whether the same preponderates in favor of or against the findings of fact made by the commission. Also, that these acts creating the Industrial Commission and defining its powers were a proper exercise of the police powers of the state by the Legislature, and were a departure from, and in derogation of, the common-law rule of damages, and that, under section 2948, Rev. Laws 1910, should be liberally construed so as to accomplish the legislative intent.

The attorney general, in his brief in support of the doctrine announced in the decision, supra, cites the case of City of Milwaukee v. Henry Miller et al., 154 Wis. 652, L. R. A. 1916A, 1, which is a very exhaustive opinion by Marshall, Justice, where, in the syllabus, it' is said:

“3. In construing a statute which is referable to the police power and was originated to promote the common' welfare, supposed to be seriously jeopardized by the infirmities of an existing system — the conditions giving rise to the law, the faults to be remedied, the aspirations evidently intended to be embodied in the enactment, and the effects and consequences' as regards responding to the prevailing conception of the necessities of public welfare, should be considered and the enactment given such broad and liberal meaning as can be fairly read therefrom so far as. required to effectively eradicate the mischiefs it was intended to obviate. ,

“4. Proper administration of the Workmen’s Compensation Act requires appreciation of the manifest legislative purpose to abolish the common-law system regarding injuries to employes as unsuitable to modern conditions and conceptions of moral obligations, and erect in place thereof one based on the highest present conception of man’s humanity to man and obligations to members of the employe class — one recognizing every personal loss to an employe, not self-inflicted, as necessarily entering into the cost of production and required to be liquidated in the steps ending with consumption.

“5. In dealing with a personal injury claim under the Workmen’s Compensation Act; tile logic and makeweights formerly-supposed to justify penalizing employers as wrongdoers, to the ultimate expense of consumers, should not be allowed to play any part; but the directly responsible party should be regarded as standing for the aggregate of consumers and joining with the injured person in submitting to the sound judgment of impartial administrators the Question of how much, under all the circumstances, by legislative standards, should the public be burdened as a reparation to such person or his dependents for his or their loss.”

As we have seen, the sole contention of counsel for the insurance carrier is that the finding of the commission that the claimant was an employe of the Ohio Drilling Company was without evidence to' support it because the evidence showed that the claimant and three other persons named constituted the Ohio Drilling Company, and that the same was a partnership. The other findings of the commission — -that the claimant received accidental injuries in the employment of the Ohio Drilling Company and engaged in a hazardous occupation, within the meaning of the statute, and in the course of his employment, and that as a result of said accident the claimant suffered the loss of the -index finger on the' left hand, and that the claimant’s average wage at the time was $14 per day — are. in no way assailed. W¡e think that the construction of the Workmen’s Compensation Act that a member of a partnership who works for the partnership, and who while so engaged is injured, is not an employe within the meaning of the act, is an exceedingly narrow construction of the act, where the sole reason therefor is that stated in the British case, supra, that a member of the, partnership cannot place himself into the position of being a workman employed when he is one of the persons giving employment, and to so hold in the instant case would fail to satisfy the rule announced that the act should be liberally construed so as to effect the legislative intent. We see no good reason why the members of a partnership cannot jointly or severally perform the work of labor incident to the success of the joint' undertaking and at the same time draw wages from the earnings of the partnership.

The undisputed testimony of the claimant that the claimant and three others constituted the Ohio Drilling Company, a partnership, and that they shared equally in the profits and each drew wages at the rate of $14 per day, and divided the excess profits equally among themselves, would not preclude the. partnership, when -engaged . in . a hazardous business, from coming ' within the provisions of the Workmen’s Compensation Law; hut, on the contrary, would compel the partnership to comply with' the provisions of the law requiring it to provide eompejnsation for its injured eanr ployes by furnishing insurance in one of the ways provided for in the act, and, as it seems, was done by the partnership in contracting with the insurance carrier herein for that purpose, and where the four members of the partnership were the sole, employes of such partnership in carrying on its business and one happened to be accidently injured, that affords no reason for holding that in these circum: stances there was any infringement of the provisions of the act, or breach of any contract for indemnity with the insurance carrier. The character of the business of the partnership brought them clearly within the provisions of the act, and the fact that the members of the parnership performed the labor incident to its business rather than hire other employes to perform the labor, it seems, in no way hazarded the risk of the insurance carrier or gavei it any reasonable excuse for avoiding its obligation to the partnership or to the state.

We think that the Industrial Commission properly held as a matter of -law, under the ■facts in the ease, that the claimant was entitled to compensation, and therefore the action of the commission in so holding is affirmed.

HARRISON, C. X, and McNEIDL, KEN-NAMER, and NICHOLSON, XT., concur.