EL Farmer & Company v. Hooks, 5386.

• Decision Date: 25 March 1957
• Docket Number: No. 5386.,5386.
• Citation: 239 F.2d 547
• Parties: E. L. FARMER & COMPANY, a corporation, Appellant, v. Marshall W. HOOKS and American Motorists Insurance Company, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

239 F.2d 547 (1956)

E. L. FARMER & COMPANY, a corporation, Appellant, v. Marshall W. HOOKS and American Motorists Insurance Company, Appellees.

No. 5386.

United States Court of Appeals Tenth Circuit.

November 26, 1956.

Rehearing Denied December 31, 1956.

Writ of Certiorari Denied March 25, 1957.

COPYRIGHT MATERIAL OMITTED

Clyde J. Watts, Oklahoma City, Okl., and Howard Barker, Fort Worth, Tex. (Looney, Watts, Looney, Welch, Hamill & Nichols, Oklahoma City, Okl., and Cantey, Hanger, Johnson, Scarborough & Gooch, Fort Worth, Tex., were with them on the brief), for appellant.

James E. Grigsby, Oklahoma City, Okl. (Howard C. Triggs, Oklahoma City, Okl., was with him on the brief), for appellee Marshall W. Hooks.

Howard Davis and Robert S. Kerr, Jr., Oklahoma City, Okl. (Kerr, Conn & Davis, Oklahoma City, Okl., were with them on the brief), for appellee American Motorists Insurance Co.

Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

Writ of Certiorari Denied March 25, 1957. See 77 S.Ct. 669.

BRATTON, Chief Judge.

Marshall W. Hooks instituted this action against E. L. Farmer & Company, a corporation, to recover damages for physical injury, together with expenses incurred and to be incurred for medical and nursing care. The substance of the cause of action pleaded in the complaint was that Kerr-McGee Oil Industries, Inc., hereinafter referred to as Kerr-McGee, was engaged in rigging up a drilling rig preparatory to the drilling of a well for oil and gas on a location in Texas; that in connection therewith defendant unloaded from trucks at the location of the well certain drilling equipment and material, including a steel platform known as a "monkey board"; that the defendant negligently and carelessly leaned the platform against a small tree near the well site; that plaintiff was employed by Kerr-McGee and was engaged with other employees in rigging up the drilling rig; that plaintiff sat on the ground under the tree against which the platform was leaning in order to be in the shade while eating his lunch; and that the platform fell upon him and caused him serious and permanent injury. American Motorists Insurance Company, the insurance carrier of Kerr-McGee, intervened to recoup compensation payments made to plaintiff.

The evidence adduced upon the trial tended to establish these facts and circumstances. Kerr-McGee owned or controlled as lessee the premises at which the accident and resulting injury occurred and it was preparing to drill thereon a well for the production of oil and gas. Through use of a bulldozer, an area approximately 150 feet square had been cleared of mesquite. A paved road extending north and south was located east of the cleared area and motor vehicles entered the area from the road. By means of trucks, B. L. Beakley transported to the location the equipment and material to be used in rigging up the drilling rig. The trucks were stopped in the northeast portion of the cleared area. Pursuant to contractual arrangement with Kerr-McGee, appellant was employed to unload the equipment and material at that place in the cleared area and to move it into position as it became needed in the assembling of the rig. A tree 12 or 15 feet in height was located east or slightly north of east of the well site on the cleared area. The distance of the tree from the well site was variously estimated at 100 to 200 feet. Sometime around 8:30 to 9:30 o'clock on the day of the accident, employees of appellant, in the course of their employment and through use of a truck equipped with a gin pole and winch line, unloaded the steel platform to which reference has been made and leaned it against the tree. The platform was approximately 8 by 10 feet in size, and its weight was estimated at from 400 to 1600 pounds. The long side of the platform rested on the ground. It was positioned at an angle of about 45 degrees, and it rested against the tree approximately 2 feet off center. When the platform was placed in that position, an employee of appellant weighing from 180 to 190 pounds jumped upon it and unfastened it from the winch line. The ground at that point was smooth and of caliche formation. It was the intention of the employees of appellant to let the platform remain in that position until the next day when it would be moved into its position at the derrick. It was the established custom and practice among those engaging in assembling and rigging up drilling rigs to lay the steel platform on the ground until it was placed in its position at the derrick. The reason the employees of appellant left this particular platform in a leaning position rather than laying it on the ground was that it could be more easily or conveniently picked up when needed in the assembling of the derrick. Twenty-two men were working at the location, 15 being employees of Kerr-McGee and 7 employees of appellant. Appellee began working for Kerr-McGee that morning as a roughneck and he was participating in the work at the substructure of the well site. About 12:30 o'clock, the employees of Kerr-McGee were told that it was time for lunch. An automobile belonging to appellee was standing slightly south of east from the tree, and a water can containing drinking water was located about 25 feet southwest of the tree. Appellee went to his automobile, got his lunchbox, and started for the water can but did not get any water for the reason that time was short and several men were ahead of him. He then went to the tree and sat down underneath it in order to be in the shade while eating his lunch. The platform fell and struck appellee in the back and he was seriously and permanently injured. The court submitted to the jury the questions of negligence, proximate cause, contributory negligence, assumption of risk, and unavoidable accident. The jury returned a verdict for plaintiff; judgment was entered upon the verdict; and defendant appealed.

The first ground of attack upon the judgment is that since appellant owed no duty to furnish appellee a place at which to eat his lunch, he was a mere licensee and appellant could not be liable for his injury. The substance of the argument in support of the contention is that in respect to the place on the premises at which the platform was leaned against the tree, appellee was a mere licensee; that appellant owed him only the duty to refrain from active negligence or wilful injury; that the evidence showed conclusively that appellant did not demonstrate wilful, wanton, or reckless conduct toward appellee in placing the platform against the tree; and that therefore the judgment should be reversed and the cause remanded with directions to dismiss the action. The accident and resulting injury having occurred in Texas, the law of that state governs herein respecting the rights, duties, and obligations of the parties, and the liability, if any, of appellant. And as we understand the law of Texas, it is the general rule that a licensor assumes no duty toward a licensee except to refrain from causing him injury by active negligence or wilful, wanton, or reckless conduct. Gonzalez v. Broussard, Tex.Civ.App., 274 S.W.2d 737. But here both appellant and appellee were on the premises as invitees of Kerr-McGee. Appellee was not there pursuant to direction, consent, or other permissive grant of appellant. There was no relationship of licensor and licensee between them in respect to the occupancy of the premises. And there was nothing in the relationship between them which operated to narrow or limit to any extent the duty resting upon appellant to exercise reasonable care under the circumstances for the safety of appellee while they were on the premises of their common employer in connection with the discharge of their respective duties. St. Louis Expanded Metal Fireproofing Co. v. Dawson, 30 Tex.Civ.App. 261, 70 S.W. 450; Snelling v. Harper, Tex.Civ.App., 137 S. W.2d 222; Larson v. Tri-City Electric Service Co., 7 Cir., 132 F.2d 693; Constantino v. Watson Contracting Co., 219 N.Y. 443, 114 N.E. 802; Samuel E. Pentecost Const. Co. v. O'Donnell, 112 Ind.App. 47, 39 N.E.2d 812; Fidelity & Casualty Co. of New York v. Llewellyn Iron Works, 42 Cal.App. 766, 184 P. 402.

The judgment is challenged on the further ground that under the uncontroverted evidence appellee was guilty of contributory negligence. It is conceded that the charge given was a correct statement of the law of contributory negligence. But it is said that if appellant be held negligent in leaning the platform against the tree, appellee was negligent in sitting under the tree, or even near the platform; that any negligence on the part of appellant furnished only a remote condition for the accident; and that therefore the court should have directed a verdict for appellant. It is the well established rule of law in Texas that ordinarily the question of contributory negligence is by reason of the very nature of the defense one of fact for the jury, and that it becomes a matter of law for the court only when but one reasonable conclusion can be drawn from all the testimony. City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159 A.L.R. 125; Texas & Pacific Railway Co. v. Day, 145 Tex. 277, 197 S.W.2d 332; Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585. It is the further rule in that state that the mere fact that a person may expose himself to a danger does not necessarily preclude recovery; and that even where a person has actual or imputed knowledge of danger, a question of fact as to negligence is presented unless it can be said as a matter of law that a person of ordinary care would not have incurred the risk. Gulf, Colorado & Santa Fe Railway Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227; McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442. When all of the facts and circumstances in this case are viewed in the light of these guiding principles, we are unable to say that as a matter of law appellant was guilty of such contributory...