Pierce v. Cook & Co.

• Decision Date: 21 December 1970
• Docket Number: No. 97-70.,97-70.
• Parties: Claudiatte PIERCE, as surviving widow of Teddy Joe Pierce, Deceased, for herself and Letitia Pierce, minor child of Teddy Joe Pierce, Deceased, Plaintiffs-Appellants, v. COOK & CO., Inc., Defendant-Appellee. Stephen ELLENWOOD, a Minor under the age of 21 years, who sues by Judson Ellenwood, as Next Friend, Plaintiff-Appellant, v. COOK & CO., Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

437 F.2d 1119 (1970)

Claudiatte PIERCE, as surviving widow of Teddy Joe Pierce, Deceased, for herself and Letitia Pierce, minor child of Teddy Joe Pierce, Deceased, Plaintiffs-Appellants, v. COOK & CO., Inc., Defendant-Appellee.

Stephen ELLENWOOD, a Minor under the age of 21 years, who sues by Judson Ellenwood, as Next Friend, Plaintiff-Appellant, v. COOK & CO., Inc., Defendant-Appellee.

No. 97-70.

United States Court of Appeals, Tenth Circuit.

December 21, 1970.

Raymond A. Trapp, Ponca City, Okl., (Kent C. Phipps, Ponca City, Okl., on the brief), for plaintiffs-appellants.

Page Dobson, Oklahoma City, Okl., (Rhodes, Hieronymus, Holloway & Wilson, Tulsa, Okl., on the brief), for defendant-appellee.

Before PHILLIPS, BREITENSTEIN and HILL, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge.

Claudiatte Pierce, as surviving widow of Teddy Joe Pierce,¹ deceased, for herself and Letitia Pierce, minor child of the decedent, brought an action to recover damages for the wrongful death of decedent against John L. Edwards and Cook and Company, Inc.²

Stephen Ellenwood, a minor, by Judson Ellenwood, as next friend, brought an action against Cook and Edwards to recover damages for personal injuries.³

The actions were instituted in the District Court of Kay County, Oklahoma. They arose out of a collision between an automobile and a truck. The actions were duly removed to the United States District Court for the Western District of Oklahoma.

Thereafter, Cook filed its separate answer in each case.

At a pretrial conference held on October 29, 1968, the court of its own motion consolidated the cases for all purposes except trial. The parties then agreed that the court should determine the facts and the law with respect to the ultimate liability of Cook, only.

The claims of plaintiffs against Edwards are not involved in this appeal. It involves only their claims against Cook.

The facts with respect to the collision are these:

Claudiatte is the widow of the decedent. Letitia is the minor child of the decedent.

On January 11, 1968, at about 8 p. m., decedent was driving his automobile in a westerly direction on U.S. Highway 270,⁴ a short distance west of Calumet, Oklahoma. Shortly before the collision, Edwards was driving his truck trailer loaded with wheat in an easterly direction on such highway, and to his left of the center line of the highway, viz., in the north lane of the highway, at a speed of about 50 miles per hour.

As the decedent was coming out of an "S" curve and was traveling in his right, or the north lane of the highway, the truck, with Edwards driving it, approached the decedent's automobile from the west, with its (the truck's) left wheels to the left of the center line of the highway, viz., in the north lane of the highway, at a speed of about 50 miles per hour. As the two vehicles were about to meet, Edwards steered his truck sharply to the right, causing the trailer to jackknife into and against the automobile of decedent, resulting in injuries to decedent from which he immediately died. Ellenwood suffered personal injuries as a result of the collision.

The treads of the tires on the tractor and trailer were so badly worn that the surface thereof was smooth, and the bolts holding the outside dual wheel at the left rear of the trailer were loose.

The highway was wet from a recent rain.

Additional facts will appear from the findings hereinafter set out.

On November 18, 1968, Cook filed a motion for summary judgment in each case.

At the hearing on such motion for summary judgment, depositions, interrogatories and answers thereto, requests for admissions of fact and answers thereto, requests for the production of documents and documents produced, and affidavits were introduced in evidence in support of and in opposition to the motions for summary judgment.

On consideration thereof, the court found:

"(a) That at the time of the accident, defendant, * * * Edwards, was driving a truck and trailer owned by him in an easterly direction on U.S. Highway 270 in Canadian County, Oklahoma, and was involved in an accident with an automobile being driven in a westerly direction by Teddy Joe Pierce, deceased husband of plaintiff, Claudiatte Pierce; and that Stephen Ellenwood was a passenger in the Pierce vehicle;

"(b) That Edwards was hauling grain in his trailer which has been loaded in Geary, Oklahoma, by personnel of Zobisch Grain Co.; and that no employees or personnel of Cook * * * were present at the loading; and thereby Cook * * * is not charged with any overloading condition, if any;

"(c) That the grain had been sold f. o.b. by Zobisch Grain Co. to Cook * * *;

"(d) That Cook * * * did not own or lease any trucks or trailers for the purpose of hauling grain but that they were in the sole business of buying and selling grain, including futures;

"(e) That Cook * * * had no truck drivers in its employ; that it had no permits, franchises or licenses to haul grain;

"(f) And that Edwards was thereby not a sublicensee, sub-permittee or sub-franchisee of Cook * * *;

"(g) That Edwards was hauling said grain pursuant to a hauling contract with Cook * * * the provisions of which provided for a predetermined rate of payment per bushel and stated destination of Houston Public Elevator;

"(h) That Edwards had hauled grain under contract for Cook * * * on approximately 52 prior occasions without incident over a period of approximately 14 months; and that during said time Edwards hauled for other shippers and Cook * * * contracted with other haulers;

"(i) That Cook * * * did not supervise or control and had no right of control as to the method or manner of operation of the hauler, did not specify a specific time for delivery of the grain, did not designate the route of travel to be taken; did not defray any maintenance or operation expenses of the hauler's trucks and made no withholding of income taxes;

"(j) That * * * Edwards was an independent contractor to Cook * * * at all pertinent times;

"(k) That Edwards had consumed a couple of beers over a period of a couple of hours prior to the accident, but was not intoxicated at the time of the accident; but in any event Cook * * * had no knowledge of the consumption and no knowledge of any drinking propensity in the driver, if any;

"(l) That Cook * * * had no knowledge of any defective condition of Edwards' rig or tires and did not inspect the same. Cook * * * made no inquiry whatsoever concerning the condition of Edwards' rig or tires;

"(m) That Cook * * * had no knowledge of any disqualifications of Edwards or his driving record, liability insurance, required permits, licenses or franchises and had no knowledge of any incompetence, if any. Cook * * * made no inquiry whatsoever concerning the driving record of Edwards, his liability insurance, his lack of permits, licenses or franchises;

"(n) That neither Cook * * * nor any of its servants, agents or employees were directly involved in the accident, the subject of this action "(o) That Cook * * * is not a `private carrier' as defined by the federal Motor Vehicle Act;

"(p) That there are no allegations or proof that Cook * * * conspired to violate or in any manner aided or abetted any violation of the criminal provisions of the federal Motor Carrier Act at 49 U.S.C.A. Section 322(c).

"(q) That further * * * Edwards is exempted from the licensing requirements of the federal Motor Carrier Act under the provisions of 49 U.S.C.A. Section 303 (b) (6); and

"(r) That under the applicable Oklahoma law, there can be no recovery herein against the movant, Cook * * *."

The court concluded:

"I.

"That this Court has jurisdiction of the parties and subject matter under the provisions of 28 U.S.C.A. Section 1332; that said cases were timely and properly removed to the federal court pursuant to the provisions of 28 U.S.C.A. Section 1441 et seq.; and that the Western District of Oklahoma is the proper venue for the action;

"II.

"That in this diversity action the law of Oklahoma, the place of the occurrence of the accident and death to Teddy Joe Pierce, pertains to suits in tort for injury or wrongful death. See Albina Engine & Machine Works, Inc. v. Abel (10th Cir. 1962), 305 F.2d 77, Slater v. Mexican National Railroad Company, 194 U.S. 120, 48 L.Ed. 900, 24 S.Ct. 581, and Cherokee Laboratories, Inc. v. Rogers, Okl., 398 P.2d 520 (1965);

"III.

"That this Federal Court sitting in the State of Oklahoma is obliged and bound to ascertain and apply the applicable state law. * * *;

"IV.

"That * * * as a matter of law under the facts the relationship (between Edwards and Cook) was that of independent contractor and not one of servant, agent or employee. See Sawin v. Nease, 186 Okl. 195, 97 P.2d 27 (Okla. 1939), Fairmont Creamery Co. of Lawton v. Carsten, 175 Okl. 592, 55 P. 2d 757 (Okla. 1936), Coe v. Esau, Okl., 377 P.2d 815 (1963). See also Albina Engine and Machine Works, Inc. v. Able, Abel (10th Cir. 1962) 305 F.2d 77;

"V.

"In Oklahoma a shipper has no duty to third persons for the negligent act of independent contractors unless the acts to be performed are unlawful or inherently dangerous. See Marion Machine Foundry and Supply Company v. Duncan, 187 Okl. 160, 101 P.2d 813 (1940), Barsh v. Mullins, Administrator, Okl., 338 P.2d 845 (1959) and Coe v. Esau, Okl., 377 P.2d 815 (1963);

"VI.

"Ordinary hauling by truck is neither inherently dangerous nor unlawful. The shipper is under no duty to inquire into the nature and adequacy of an independent hauler's equipment. An automobile is not an inherently dangerous machine. Marion Machine Foundry and Supply Company v. Duncan, supra, and Ford Motor Co. v. Livesay, 610 61 Okl. 231, 160 Pac. 901;

"VII.

"Failure of trucker to have hauling permits, licenses or franchises has no causal connection with injuries sustained as a result of a truck driver's negligence and/or physical defects, whereby failure to have required permits is not `unlawful' so as to come within...