Burk v. Cities Service Oil Company of Delaware

• Decision Date: 20 April 1959
• Docket Number: No. 5978.,5978.
• Citation: 266 F.2d 433
• Parties: Jack W. BURK, Appellant, v. CITIES SERVICE OIL COMPANY OF DELAWARE, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

266 F.2d 433 (1959)

Jack W. BURK, Appellant, v. CITIES SERVICE OIL COMPANY OF DELAWARE, a corporation, Appellee.

No. 5978.

United States Court of Appeals Tenth Circuit.

April 20, 1959.

Howard C. Triggs and James E. Grigsby, Oklahoma City, Okl., for appellant.

Looney, Watts, Looney & Nichols, and Anna B. Otter, Oklahoma City, Okl., for appellee.

Before MURRAH, LEWIS and BREITENSTEIN, Circuit Judges.

MURRAH, Circuit Judge.

The precise question presented on this appeal is whether, under the Oklahoma Workmen's Compensation Act, Title 85 O.S.1951 § 1 et seq., as amended, an employee of an independent contractor can maintain a common-law negligence action against his principal employer for injuries sustained in the course of his employment.

The question is presented under these pertinent and undisputed facts. The appellant, Burk, sustained an accidental personal injury while employed by Procon, Inc., a construction company engaged in the erection of refinery equipment on appellee Cities Service's refinery as an independent contractor. The Oklahoma Industrial Commission found that the injury arose out of and in the course of appellant's employment with Procon and accordingly awarded compensation which was duly paid. The appellant thereupon brought this suit against Cities Service as a third-party tort-feasor as provided by Section 44 of the Workmen's Compensation Act.¹

The trial court sustained a motion to dismiss and entered judgment for Cities Service, apparently on the grounds that the compensation award precluded the maintenance of this common-law action.

Section 11 of the Oklahoma Workmen's Compensation Act, supra, provides in effect that an independent contractor shall be liable for compensation due his direct employees, and furthermore, imposes a contingent or secondary liability on a principal employer for compensation due all such employees if he fails to require his independent contractor to comply with the Workmen's Compensation Law. With immaterial exceptions, Section 12 of the Act makes the remedy provided in Section 11 exclusive of all other liabilities "of the employer and any of his employees, at common law or otherwise * * *." These provisions of the Act have been construed by the Oklahoma courts to declare that a principal employer is not liable in a tort action for an injury occurring to an employee of an independent contractor in the course of his hazardous employment, provided the work being performed by the independent contractor was an integral part of, necessarily connected with, and incident to the business of the principal employer. Baldwin v. Big X Drilling Co., Okl., 322 P.2d 647; Mid-Continent Pipe Line Co. v. Wilkerson, 200 Okl. 335, 193 P.2d 586; Jordon v. Champlin Refining Co., 200 Okl. 604, 198 P.2d 408; Deep Rock Oil Corp. v. Howell, Judge, 200 Okl. 675, 204 P.2d 282.

The immunity from the common-law liability derives from the principal employer's secondary liability for workmen's compensation under Section 11 to employees of an independent contractor. And, this is apparently so even if the independent contractor has complied with the Workmen's Compensation Act and the injured employee has been duly compensated thereunder. See Mr. Justice Davidson concurring in Mid-Continent Pipe Line Co. v. Wilkerson, supra, quoted in Horwitz Iron & Metal Co. v. Myler, 207 Okl. 691, 252 P.2d 475. It follows that the common-law remedy against negligent third-party tort-feasors preserved under Section 44 of the Workmen's...