Mid-Continent Pipe Line Co. v. Wilkerson
| Decision Date | 18 May 1948 |
| Docket Number | 32328. |
| Citation | 193 P.2d 586,200 Okla. 335,1948 OK 123 |
| Parties | MID-CONTINENT PIPE LINE CO. v. WILKERSON. |
| Court | Oklahoma Supreme Court |
Appeal from Superior Court, Seminole County; Bob Aubrey, Judge.
Action by Edmond Lee Wilkerson against Mid-Continent Pipe Line Company, a corporation, for personal injuries. From an adverse judgment, defendant appeals.
Reversed with instructions.
Syllabus by the Court.
1. Employee's right of action for injuries arising out of and in course of hazardous employment and jurisdiction of courts thereover, with certain exceptions, are abrogated by Workmen's Compensation Law. 85 O.S.1941, § 1 et seq.
2. Liability of the principal employer under the terms of the Workmen's Compensation Law of this State to provide compensation for injuries to an employee of an independent contractor is exclusive and such employee is without right to maintain action in tort against the principal employer on account of such injuries.
3. The question of jurisdiction is primary and fundamental in every case, and must be inquired into and answered by this court both as to its own jurisdiction as well as to the jurisdiction of the court from which the appeal is taken whether raised by any party or not. Harbor v. McKeown et al., 195 Okl. 290, 157 P.2d 753; Dolese Bros. v Tollett, 162 Okl. 158, 19 P.2d 570.
R. H Wills, J. H. Crocker, J. P. Greve, J. H. Woodard, Oscar E. Swan, Jr., and Ben Hatcher all of Tulsa, for plaintiff in error.
Homer Bishop, of Seminole, and Harry L. Atkinson, Charles W. Schwoerke, O. A. Cargill, James R. Eagleton, and O. A. Cargill, Jr., all of Oklahoma City, for defendant in error.
Rainey, Flynn, Green & Anderson and Richardson, Shartel, Cochran & Pruet, all of Oklahoma City, Anglin, Stevenson & Huser, of Holdenville, Hudson, Hudson & Wheaton, A. M. Covington, Victor Mieher, and Booth Kellough, all of Tulsa, A. R. Daugherty, of Oklahoma City, and Don Emery, R. B. F. Hummer, Rayburn L. Foster, L. A. Rowland, Alton H. Rowland, A. M. Ebright, Hayes McCoy, J. E. Jarvis, and R. O. Mason, all of Bartlesville, amici curiae.
Defendant in error, as plaintiff, sued plaintiff in error, as defendant, in tort for personal injury and therein on trial to jury recovered a verdict in the amount of $75,000, and from the judgment thereon this appeal is prosecuted. Herein the plaintiff in error will be referred to as defendant, and defendant in error as plaintiff.
The defendant is engaged in the business of transporting crude oil through its pipe lines, and on September 8, 1943, the date the accident occurred, there was being installed in the line what is known as a 'scraper trap.' Engaged in the work of installation were from thirteen to fourteen men. Of these five or six were employees of the defendant, and among them was one Clifford Ohls. The remainder were employed by Pipe Line Service Company, an entity independent of defendant, and furnished by it to defendant under a contract between it and the defendant. The plaintiff was employed by the independent company, which will be referred to herein as Service Company.
During the progress of the work, and on the date mentioned, Clifford Ohls was in the act of removing from a truck an implement constituting a part of a hoist, to be used to elevate the line pipe, and it is alleged that in so doing the plaintiff was struck and thereby suffered the injury which is the basis of the action.
It is alleged in the petition that the Service Company was an independent contractor and in pursuance of its contract with the defendant carried compensation insurance as required by the Workmen's Compensation Law. That by reason thereof no liability under the Compensation Law, contingent or otherwise, obtained and therefore the defendant was a 'third person' within meaning of 85 O.S.1941 § 44, and liable to respond in damages when negligence is shown.
For answer defendant, in addition to a general denial and other defenses, not material for purpose of our review, averred specifically that both the Service Company and defendant had complied with the provisions of the Workmen's Compensation Law and charged that the superior court was without jurisdiction in the premises.
Upon conclusion of plaintiff's evidence in chief and again at close of all the evidence defendant challenged the jurisdiction of the court to proceed by motion to dismiss. In both instances the motions were overruled.
Many errors are assigned but, being of the opinion that the jurisdictional question is decisive of the appeal, we will limit our review thereto and to the action of the trial court thereon.
That the work being performed was hazardous employment within contemplation of the Workmen's Compensation Law is conceded. And it is admitted by plaintiff that unless the Service Company was an independent contractor no right obtained in plaintiff to prosecute this action and that the superior court was without jurisdiction. The defendant challenges the contention that the superior court would have jurisdiction even if the Service Company were an independent contractor.
Concerning the fundamental importance of the question of jurisdiction and its determination, we held in Harber v. McKeown, 195 Okl. 290, 157 P.2d 753:
'The question of jurisdiction is primary and fundamental in every case, and must be inquired into and answered by this court both as to its own jurisdiction as well as to the jurisdiction of the court from which the appeal is taken, whether raised by any party or not, and may be done on its own motion.'
And touching the duty of the trial court, we declared in Dolese Bros. v. Tollett, 162 Okl. 158, 19 P.2d 570:
'A trial court is required to determine the legal question as to whether or not it has jurisdiction of the subject-matter of an action presented to it for determination and it is neither authorized nor required to submit to a jury the question of whether or not it has jurisdiction of the subject-matter thereof.'
Plaintiff contends that defendant having required Service Company to carry compensation insurance is not liable for compensation and not being so liable is not by the terms of the Workmen's Compensation Law made immune to an action for tort. This involves a construction of 85 O.S.1941 §§ 11 and 12.
It is further contended that plaintiff's common law right of action against defendant is recognized by the terms of the Workmen's Compensation Law. The theory advanced therefor is that since plaintiff is an employee of an independent contractor defendant is not one 'in the same employ,' as to whom alone the right of action in tort is abrogated by the terms of the law. This involves construction of section 44 of Title 85.
Thus we have two approaches to the question, one bearing upon the liability of defendant to be sued and the other upon the right of the plaintiff to sue. In the last analysis the liability and the right must co-exist and the absence of either would be determinative of the right of action.
If by the terms of said sections 11 and 12 liability of defendant to a tort action for the injury is not excluded the question would be whether under terms of section 44 plaintiff is entitled to prosecute the same. On the other hand, if by the first mentioned sections defendant is made immune to such action there is no need to resort to section 44 unless thereby such immunity has been qualified.
It does not appear that this court has construed the law in a parallel situation. And since recourse must be had to the statutory provisions we copy here the material provisions thereof:
'Every employer subject to the provisions of this Act shall pay, or provide as required by this Act, compensation according to the schedules of this article for the disability of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury, * * * and provided, further, that the liability of any person, firm or corporation having an interest in the subject matter, employers and contracting employers, general or intermediate, for compensation under this Act, when other than the immediate employer of the injured employee, shall be as follows:
'1. In the absence of provisions to the contrary in any contract with an independent contractor, such independent contractor shall be conclusively presumed to have agreed, as a part of the terms of the contract, that he will comply with the Workmen's Compensation Laws of this State, and in case of a failure to do so, the person procuring such work to be done by independent contractors, may declare such failure a substantial violation of the contract, and terminate the same at his or their option. * * * The independent contractor shall, at all times, be liable for compensation due to his direct employees, or the employees of any subcontractor of such independent contractor, and the principal employer shall also be liable in the manner hereinafter specified for compensation due all such employees. * * *
* * *'
'The liability prescribed in the last...
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