Brown v. Burkett

Brown v. Burkett
1988 OK 49
755 P.2d 650
Case Number: 67071
Decided: 05/03/1988
Supreme Court of Oklahoma

 
JIM BROWN, D/B/A R & R BUILDERS, PETITIONER,
v.
RICHARD D. BURKETT AND JAMES FIGGINS, RESPONDENTS.

Appeal from the Workers' Compensation Court, Jeffries Brawner, Clint G. Livingston, Kay Karen Kennedy, JJ.,

¶0 Proceeding to review the award of a three-judge panel of the Workers' Compensation Court (composed of Judges Jacque Jeffries Brawner, Clint G. Livingston, and Kay Karen Kennedy), which adopted the decision made by the trial judge, Charles L. Cashion.

AWARD VACATED AND CLAIM REMANDED WITH DIRECTIONS.

Rodney J. Heggy, Cheek, Cheek, & Cheek, Oklahoma City, for petitioner, Jim Brown, d/b/a R & R Builders.

Rose M.J. Sloan, John S. Oldfield, Jr., Oldfield and Coker, Oklahoma City, for respondent, James Figgins.

J. Mike Lawter, and Jamie Pitts, Lawter & Pitts, Inc., Oklahoma City, for respondent, Richard D. Burkett.

OPALA, Justice.

[755 P.2d 651]

¶1 The dispositive question on review

¶2 Richard D. Burkett [claimant] was injured when he fell off the roof of a house where he was working as a carpenter and electrician. James Figgins [owner] owned the house. Jim Brown [petitioner or Brown] was one of several individuals who performed various tasks necessary to complete a remodeling project. Brown did skilled labor and also acted as general supervisor.

¶3 Claimant sought benefits under the Workers' Compensation Act

¶4 Master-servant relationship is a jurisdictional prerequisite for a compensation award.

¶5 The facts are not in dispute. During a friendly chance meeting between two neighbors on a country road, Brown asked the claimant if he would be interested in working on the owner's remodeling project. The claimant, who had never before worked with or for the petitioner, knew of the latter's skills as a carpenter, electrician, and general construction laborer. Grateful for the opportunity to work, the claimant accepted. Brown had already been on the job for some time, and the owner had others hired to help.

¶6 Remuneration for the claimant's services consisted of $6.00 and $7.00 per hour, depending on the skills required for a specific task. Brown was paid $8.00 per hour. For convenience, the claimant was paid directly by the petitioner, who kept a record of the hours worked by several laborers including himself. By mutual agreement no withholding or other taxes were deducted from any of the wages paid. The owner usually supplied the necessary materials himself, but when urgent need arose, Brown would make the purchase.

¶7 Every week or so the owner himself inspected the progress of work. Changes he desired were often made by instructing the petitioner, who also had drawn the blueprints for the project. Although Brown [755 P.2d 652] told the laborers they were his employees, the claimant knew that both he and the petitioner were subject to the owner's specific directions and control, and that none of the workers had complete and independent authority. Admitting he worked with the petitioner "side by side", the claimant was never instructed by Brown on how his work should be performed.

¶8 Finally, while the petitioner did use checks, business cards and stationery with the name, R & R Builders, he made no profit per se from paying wages or purchasing materials.

¶9 The claimant argues the evidence establishes the requisite employment relationship between himself and the petitioner. Because the amount and method of paying his wages were negotiated through the petitioner, and the kind of work required was identical to that for which R & R Builders was known, the claimant urges he was "hired" by the petitioner. He further relies on his own testimony that he always believed he was "working for" the petitioner, who instructed him on "what to do pertaining to the remodeling." We disagree with the claimant's conclusion. His assessment of the evidence accentuates the form in which the parties dealt and ignores the substance of their interaction.

¶10 Employment is statutorily defined to include labor in a trade or business "carried on by an employer for pecuniary gain . . .;"

¶11 The claimant further argues, in essence, that the petitioner was an independent contractor. Brown could be so classified, if he contracted with the owner to work on a particular project according to his personal or unique methods, free from the owner's control and instruction, except as to the result or product.

¶12 While the Workers' Compensation Act is to be construed liberally in favor of those [755 P.2d 653] entitled to benefits, claimants must bear the burden of demonstrating, by competent evidence persuasive to the trier, that they are within a protected class.

¶13 An employer is one who maintains a business and hires workers to perform services that are connected with one's business.

¶14 Nor can we say there is sufficient evidence that Brown voluntarily assumed employer status. His statements to other workers indicating they were "his" employees does not ipso facto establish a relationship of that character. The record convinces us that they understood his authority stemmed solely from the owner.

¶15 We hence hold that on the record before us the claimant failed to establish his employee status vis-a-vis the petitioner. Absent here is proof to show that the petitioner meets the statutory definition of employer and that he himself had the quantum of control essential for a master-servant relationship.

¶16 Award vacated and cause remanded with directions to deny the claim.

¶17 DOOLIN, C.J., HARGRAVE, V.C.J., and HODGES and LAVENDER, JJ., concur.

¶18 ALMA WILSON, KAUGER and SUMMERS, JJ., concur in result.

¶19 SIMMS, J., dissents.

Footnotes:

1 This proceeding for review was earlier reached for disposition of a jurisdictional question. See Brown v. Burkett, Okl., 750 P.2d 481 [1988].

2 85 O.S. 1981 §§ 1 et seq.

3 Owner was found to have been exempt from liability under 85 O.S.Supp. 1985 § 11 (3), whose pertinent terms provide:

"Where work is performed on a single family residential dwelling or its premises occupied by the owner . . . such owner . . . shall not be liable for compensation under the Workers' Compensation Act. Such owner . . . shall not be liable to the employee of any independent contractor or subcontractor, where applicable. . . ." [Emphasis added.]

4 Because the three-judge panel's intra-court reexamination of the trial judge's disposition replaces by substitution the earlier decisional stage, the panel's order alone stands for appellate review as the Workers' Compensation Court's order. Parks v. Norman Mun. Hosp., 684 P.2d 548, 552 [1984].

5 Fluor Engineers & Contractors, Inc. v. Kessler, Okl., 561 P.2d 72, 74 [1977]; Nichols v. State Industrial Commission, 207 Okl. 167, 248 P.2d 616, 619 [1952]; Scott v. Board of Com'rs of Garvin County, 189 Okl. 601, 119 P.2d 56, 57 [1941].

6 Beall v. Altus Public School Dist., Okl., 632 P.2d 400, 401 [1981]; Leonhardt Enterprises v. Houseman, Okl., 562 P.2d 515, 517 [1977]; Thompson v. Braselton Federal Insul. & Bldg. M. Co., Okl., 223 P.2d 527, 528 [1950].

Because the error sought to be corrected is one from resolution of a jurisdictional fact issue, no deferential standard of review may be accorded here to the trial tribunal's finding of employment status. On non-jurisdictional fact issues we accept as binding the trial tribunal findings, if they are supported by any competent evidence. Parks v. Norman Municipal Hospital, supra note 4.

7 Cf. Mabee v. McWaters, 151 Okl. 10, 1 P.2d 636, 637 [1931], where a sign appearing on the respondent's truck did not prove that his driver had the authority to hire another to work with him. The facts and circumstances in that case were held insufficient to establish the master-servant relationship.

8 85 O.S.Supp. 1986 § 3 (5).

9 85 O.S.Supp. 1986 § 3 (8).

10 85 O.S.Supp. 1986 § 3 (8); Bowen v. McHenry, 201 Okl. 151, 202 P.2d 987 [1949] (syllabus).

11 See Cannan v. Drane, Okl., 477 P.2d 687, 691 [1970].

12 See Herron Lumber Company v. Horn, Okl., 446 P.2d 53, 54 [1968] (syllabus).

13 Herron Lumber Company v. Horn, supra note 12; Union Mutual Insurance Company v. Hill, Okl., 356 P.2d 336, 337 [1960].

14 Cannan v. Drane, supra note 11 at 691-692.

15 Beall v. Altus Public School District, supra note 6 at 403.

16 Brewer v. Bama Pie, Inc., Okl., 390 P.2d 500, 502 [1964].

17 85 O.S.Supp. 1986 § 3 (5); Standard Savings & Loan Ass'n v. Whitney, 184 Okl. 190, 86 P.2d 298, 301 [1939].

18 See Robinson v. Board of County Commissioners, Okl., 289 P.2d 668, 671 [1955].