Claimant, Cecil C. Self, was awarded compensation by the State Industrial Commission against W.B. Johnston Grain Company and its insurance carrier, Utilities Insurance Company. The insurance carrier brought this proceeding to review the award. W.B. Johnston Grain Company and the insurance carrier have filed separate briefs and they are adverse to each other. The insurance carrier contends that claimant was not the employee of W.B. Johnston Grain Company, but was the employee of a joint adventure designated as W.B. Johnston Grain Company and Associates; that a joint adventure is a legal entity separate and apart from the various parties composing it so that the true employer of claimant was such entity rather than the various members of the joint venture; and that since W.B. Johnston Grain Company was not the employer, its insurance carrier is not liable.
It was stipulated that if claimant was the employee of anyone his master would have been the W.B. Johnston Grain Company and Associates, a joint adventure. The language of the stipulation suggests that a joint adventure is a legal entity, but if as a matter of law it is not a legal entity any suggestion to the contrary contained in the stipulation must be ignored.
If, as petitioner contends, a joint adventure is a separate legal entity then by force of the language contained in Anderson v. Dukes, 193 Okl. 395, 143 P.2d 800, and in Oklahoma Farm Bureau Mut. Ins. Co. v. Mouse, Okl., 268 P.2d 886, it would appear that W.B. Johnston Grain Company and the other members of the joint adventure were not employers in the sense that would cause the individual insurance carriers to be liable.
The above mentioned cases involved partnerships and the holdings therein were based upon prior pronouncements of this court to the effect that a partnership is a distinct entity from the individual members constituting it. In Anderson v. Dukes, supra [193 Okl. 395, 143 P.2d 801], the court said:
Petitioner contends that all questions arising in connection with a joint adventure are governed by the laws of partnership. Boles v. Akers, 116 Okl. 266, 244 P. 182, and Twyford v. Sonken-Galamba Corp., 177 Okl. 486, 60 P.2d 1050. In the Boles case we said that the "rights as between the adventures are governed * * * by the same rules that govern partnerships." [116 Okl. 266, 244 P. 184.] In the Twyford case we said further that questions arising from the adventurers' "relations with third parties are governed by the laws of partnership." [177 Okl. 486, 60 P.2d 1051.] But a pronouncement that the rights and liabilities of joint adventurers inter sese and as to third persons are governed generally by the laws of partnerships is not tantamount to saying that a joint adventure's entity or non-entity character depends upon whether a partnership is or is not a distinct entity. Our task at this point is to determine what a joint adventure is or isn't, not to determine what the rights and liabilities are of those engaged in a joint adventure.
In Boles v. Akers, supra, we said that a joint adventure was similar to a partnership but not identical. In Wertzberger v. McJunkin, 171 Okl. 528, 43 P.2d 729, 731, we said:
In Maryland Casualty Co. v. Rose, 163 Okl. 76, 20 P.2d 1046, 1047, appears the following language:
We have been cited no cases wherein the court expressly discussed or commented upon the question of whether a joint adventurer is or is not a distinct entity separate from the parties composing it; however, in Sand Springs Home v. Dail, 187 Okl. 431, 103 P.2d 524, the Commission found that the claimant was in the joint employment of the joint adventurers and entered an award against each of them and their separate insurance carriers. One of the joint adventurers and its insurance carrier appealed. The award was affirmed. There inheres in that decision the principle that an employee of a joint adventure is an employee of each of the individual members of the joint adventure. Though, admittedly, it was not contended in that case that the joint adventure, as a distinct entity, was the employer. Subsequently, in Traders & General Ins. Co. v. Sand Springs Home, 195 Okl. 509, 158 P.2d 1018, which involved another facet of the same case, we said that the award in Sand Springs Home v. Dail was joint and several and that the injured employee was the employee of each of the joint adventurers, and that they and their insurance carriers had a common and several burden of liability to the workmen for the full amount of the award. In this connection, we observe parenthetically that no complaint is made by claimant nor petitioner insurance carrier as to the Commission's failure to enter the award against the other adventurers and their insurance carriers. Undoubtedly, this is because of our decision in Spaulding & Osborne v. Pacific Employers Ins. Co., 192 Okl. 154, 134 P.2d 581.
If we consider only that which was said or approved in the Sand Springs Home cases it would appear to refute the insurance carrier's contention that a joint adventure constitutes a separate legal entity. But since the court did not expressly say, in those cases, that the joint adventure was not a separate entity we deem it advisable to expressly consider this question in the present case, and in doing so we further deem it necessary to consider the origin and basis for the view that a partnership is an entity.
It appears that under the common law a partnership was not considered as a legal entity separate from the individuals constituting it. In a great many states it is still not so considered. See 40 Am. Jur. Partnership § 18, p. 138. Part of this section reads as follows:
And though there are decisions by this court to the effect that a partnership is a distinct entity it was not generally considered by the bar of this state that a partnership was such an entity as was capable of taking and holding title to real estate prior to the adoption of the Uniform Limited Partnership Act, 54 O.S. 1951 § 141 et seq., in 1955, which expressly authorizes the acquisition of real property in the partnership name. See Title Examination Standard No. 19, Chapter 1 — Appendix to Title 16 O.S. 1951.
The genesis of the view in this jurisdiction that a partnership is an entity was the case of Heaton v. Schaeffer, 34 Okl. 631, 126 P. 797, 798, 43 L.R.A., N.S., 540. In that case we held that since partnership debts are by statute declared to be joint debts of the partners, as opposed to both joint and several, an individual
In arriving at this conclusion the court said:
A careful reading of Heaton v. Schaeffer, supra, will disclose that the principal reason for the conclusion that a partnership was a separate entity, so that an individual judgment establishing primary liability could not be rendered, was the statute which made partnership debts joint obligations rather than joint and several. This is patent from the following language in the latter part of the opinion:
In Right Way Laundry v. Davis, 98 Okl. 264, 225 P. 345, we held that the rule announced in Heaton v. Schaeffer, supra, was applicable only as to contract obligations of the partnership, and that in tort actions, the liability is joint and several so that an action can be maintained against any one member of the partnership without joining the others. See also Vernon v. Dobbins, 190 Okl. 293, 123 P.2d 264, wherein it was held that both partners were liable in their individual capacity for the negligence of one of the partners. It is apparent that this rule is somewhat inconsistent with the rule that a partnership is an entity, and illustrates that the primary reason a personal judgment cannot be rendered against a partner in contract cases is because of the statute which provides for joint rather than joint and several liability. There is a difference of opinion as to whether an action for Workmen's Compensation is in the nature of a tort action or a contract action. See 58 Am.Jur. Workmen's Compensation § 4. In Fowler v. Brooks, 193 Okl. 580, 146 P.2d 304, we treated such an action as a contract action inasmuch as we held in that case that the partners were not severally liable for a Workmen's Compensation award. In the Sand Springs Home cases, we necessarily held either that an action for Workmen's Compensation was in the nature of a tort action, which would create joint and several liability even though the joint adventurer was an entity, or that a joint adventure created only a status and not a distinct entity, so that each joint adventurer was an employer. Since the decision in Traders & General Ins. Co. v. Sand Springs Home, supra, was subsequent to our decision in Fowler v. Brooks, supra, it must follow that in the Traders & General case the basis for holding the joint adventurers severally liable for Workmen's Compensation was that a joint adventure is not an entity; therefore each adventurer is an employer, and therefore individually liable.
The exact nature of a joint adventure is rather nebulous. However, it has been generally considered as the creation of a
We hold that a joint adventure is not a distinct legal entity separate and apart from the parties composing it.
Since a joint adventure is not a distince legal entity, it follows that claimant was the employee of each of the joint adventurers. And each joint adventurer and their individual insurance carriers are jointly and severally liable for the entire award under our decisions in the Sand Springs Home case. Therefore the award was properly entered against W.B. Johnston Grain Company and petitioner Utilities Insurance Company, its insurance carrier. In this connection we observe that it might have been proper and more equitable had the Commission entered the award against each of the joint adventurers and their respective insurance carriers. But as hereinabove noted, and possibly because of our decision in Spaulding & Osborne v. Pacific Employers Ins. Co. supra, no complaint was made in this regard.
Award sustained.
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