Horwitz Iron & Metal Co. v. Myler, 35115

• Decision Date: 23 December 1952
• Docket Number: No. 35115,35115
• Citation: 252 P.2d 475,207 Okla. 691
• Parties: HORWITZ IRON & METAL CO. et al. v. MYLER.
• Court: Oklahoma Supreme Court

Page 475

252 P.2d 475

207 Okla. 691

HORWITZ IRON & METAL CO. et al. v. MYLER.

No. 35115.

Supreme Court of Oklahoma.

Dec. 23, 1952.

Rehearing Denied Jan. 20, 1953.

Syllabus by the Court.

1. 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.

2. Employee's right of action for injuries arising out of and in the course of hazardous employment and jurisdiction of courts thereover, with certain exceptions, are abrogated by Workmen's Compensation Law, 85 O.S.1951 § 1 et seq.

3. 85 O.S.1951 § 44, applies only to the injured workman, his employer and insurance carrier; it does not affect the liability of a negligent third party and furnishes no defense to a common-law action based upon negligence against such third party by a workman injured in the course of his employment and covered by the Workmen's Compensation Act.

4. Where an employee of a Transportation Company on application to the State Industrial Commission receives an award under the Workmen's Compensation Act for personal injuries received in a hazardous employment and thereafter brings an action under the common law for damages against a third party, not in the same employ, based upon the negligence of the third party, the injured person's recovery under the Act is without regard to negligence while the common-law action for personal injury must be based upon and flow directly and proximately from the negligent act charged.

5. Record examined and held: where the evidence sustains a finding that a motor freight company engaged in transporting heavy merchandise in interstate commerce was requested by the equipment company to pick up two sheets of steel at its place of business; and the driver of the motor freight truck after receiving bills of lading was instructed by the equipment company to proceed to its yard where its employees would load the sheets of steel, and in the loading operation the equipment company negligently caused an accident and injury to the driver of the motor freight company's employee, such employee is not barred by the provisions of 85 O.S.1951 §§ 11 and 12, from maintaining an action at common law against the equipment company for damages for personal injuries notwithstanding such employee has received compensation from his employer under the Act, for the reason that the service performed by the motor freight company and its employee was not such as would constitute them a part of the business, trade, or occupation in which the equipment company was engaged.

Welcome D. Pierson and Edward Spiers, Oklahoma City, for plaintiffs in error.

McDonald, Tinker, Skaer, Quinn & Porter, Wichita, Kan., Dyer & Powers, Tulsa, for defendant in error.

O'NEAL, Justice.

Carroll S. Myler recovered a judgment against Horwitz Iron and Metal Company, a co-partnership, as damages for personal injuries received on March 29, 1948.

The parties will be referred to as plaintiff and defendants as they appeared in the trial court, or for clarity, as Myler and Horwitz, and the employer of Myler, as Lee Way.

For several years prior to the date of the accident here involved, plaintiff was employed by the Lee Way Motor Freight, Inc., a company engaged in the transportation of heavy goods in interstate commerce. The Horwitz Iron & Metal Co. were engaged in commerce and trade as wholesalers and retailers of used and new pipe and structural steel.

Myler was instructed by Lee Way to proceed to the Horwitz establishment in Oklahoma City to pick up certain merchandise for transportation. Upon arrival at the yard he procured the bill of lading from Horwitz and was directed to proceed to the yard where Horwitz' employees would load the merchandise on his van; said merchandise consisted of two sheets of steel weighing approximately 1,400 pounds each. These sheets were approximately 18 1/2 feet long, 5 feet wide and 3/8 of an inch thick. Horwitz' A-Pole Winch truck had been spotted or placed near the steel plates for convenience in loading them on Lee Way's van. Three of Horwitz' employees proceeded to load the steel sheets in the following order: A friction type clamp was attached to the sheet near the center running edge. The winch operator, one of Horwitz' employees, raised the sheet so that the running edges were parallel with the ground and the 5 1/2 feet edges were perpendicular to the ground. The clamp was connected to a winch line running upwards and over the A-Pole of the defendants' truck, then downwards to the winch drum on the truck. By the operation of the truck's motor, the winch elevated the steel sheet.

Myler's van was placed near the defendants' winch truck in a diagonal position. Myler remained in the cab of his truck as Horwitz' employees lifted the sheet as indicated. Myler was directed by one of the defendants' employees to back his van and by his operation the steel sheet was partially inserted into the van. Why Myler got out of the Lee Way van he observed that the operator of the winch truck was seated in the cab of the Horwitz winch truck and that two of defendants' employees were holding to the end of the steel sheet extending out of the van to keep the sheet in an upright position. Myler, seeing that all of Horwitz' employees were engaged and could not release and reset the clamp at a new position, entered the back of his van with the purpose of releasing the clamp and replacing it near the end of the steel sheet so that the winch pole could shove the entire sheet forward into the van. The sheet at this time was standing in a vertical position against the side of the van, the bottom extending about 18"' from the side. The winch line was slackened by Horwitz' operator of the truck and, thereupon, Myler loosened the clamp and slid it backward along the upper edge of the sheet. The clamp slid off of the edge and he attempted to replace it, but was unable to close the clamp. At this point the sheet toppled over upon Myler, pinning him underneath it. Although two of the defendants' employees were holding the end of the sheet extending out of the rear of the van, they were unable to prevent it from falling. As a result Myler received serious injuries, one of which was the loss of his left leg. These injuries were of a serious nature requiring repeated surgery and long hospitalization. No serious contention is made as to the extent of Myler's physical injuries, which resulted in the amputation of his leg above the knee.

Although plaintiff had assisted in loading merchandise at defendants' plant on previous occasions, he had not assisted in loading steel sheets of the size and weight as those loaded on the date of the accident. The defendants' employees were experienced in similar loading operations and knew the dangerous character of the work. They did not advise plaintiff of the danger of his position as he entered the loading van.

As to the condition of the clamp used in the loading operation, the evidence is in sharp conflict. Plaintiff testified it was old, rusty, and beat up with hammers to where it would not work properly.

On the date of the accident, defendants had three Volz clamps which were in general use at their plant. Defendants, however, were unable to state which one of the clamps were used in the loading operation. They did not produce either of the clamps for visual examination of the jury, giving as a reason that they were in use at the plant. Moreover, the defendants' foreman testified that 'our employees don't get into the truck and load the steel that way.' Jess Berryman, who was assisting his fellow employee in attempting to hold the sheet in a vertical position, stated that he observed Myler get out of the cab of his van and enter the van from the rear and observed Myler take off the clamp and attempt to refasten it; but that the witness did not advise Myler of the danger of so doing. He also gave evidence tending to establish that the particular method of loading undertaken by the defendant with the type of equipment and the number of men employed, was a dangerous operation and very hazardous, and that the method employed was not regarded as safe by those familiar with such operations.

Three witnesses, experienced in the loading of heavy equipment, gave it as their opinion that the use of a single tension clamp was not a safe operation, because the minute the load was relieved with this single type clamp it has a tendency of releasing the particular clamp used. They also expressed their opinion that this difficulty could be avoided by the use of a sling type to lift the steel sheets to the height of the loading van, then lowering the sling and taking it back to the end of the sheet and hoisting it again, and by the use of pipe rollers to inject the sheets into the van; that such operation could be conducted in a manner to obviate the necessity of leaning the sheets in a vertical position in the van.

Plaintiff's evidence also sustains his contention that the teeth of the friction clamp were worn, corroded and filled with dirt and grease, which caused it to slip from a fixed position. This contention was denied by the evidence of the defendants. Their evidence supports their contention that the type of clamp used in the loading operation was the kind customarily used for loading sheets of steel. Also, that the clamp was in a good workmanlike condition and was constantly in use in such operations. Suffice it to say that this issue was submitted to the jury under instructions not here complained of and the issue was resolved in plaintiff's favor.

We have uniformly held that if there is any competent evidence which with all inferences reasonably to be drawn therefrom tends to support the verdict of the jury, the judgment thereon will not be reversed on the ground of insufficiency of the evidence.

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