Bokoshe Smokeless Coal Co. v. Morehead
| Decision Date | 14 May 1912 |
| Docket Number | Case Number: 1804 |
| Citation | 126 P. 1033,34 Okla. 424,1912 OK 329 |
| Parties | BOKOSHE SMOKELESS COAL CO. et al. v. MOREHEAD. |
| Court | Oklahoma Supreme Court |
¶0 1. MASTER AND SERVANT--Injuries to Servant--Relation of Parties--Independent Contractor. The Bokoshe Smokeless Coal Company subleased to Henderson a coal mine. Henderson agreed to operate the mine in accordance with the acts of Congress and the rules of the Interior Department relating to the leasing of Indian coal lands, and in such manner as to insure the largest production of coal; to maintain in good working order all entrances, gangways, air courses, slopes, shafts, and planes; to maintain pillars when necessary; to keep within certain boundaries; to preserve the buildings and machinery in good condition; to assume all liability for personal injuries, or otherwise; to pay a royalty upon each ton of coal mined; to permit the coal company to collect the proceeds of all sales, out of which it should reserve its royalty and pay over the balance to Henderson. The coal company reserved the right to inspect, examine, and survey the premises at any time, and it was agreed that all the "workings" on the premises should "be done under the general supervision of the superintendent of the" company. Held, that Henderson was an independent contractor.
2. SAME. The retention by the owner of the right of general supervision of the work of a contractor does not prevent the contractor from being an independent contractor.
3. SAME. A contract which, upon its face, creates the relation of owner and independent contractor, will not protect the owner from liability for negligence of the contractor, if it is designed as a mere subterfuge to shield the owner from liability for his negligence.
4. SAME--Actions--Sufficiency of Evidence. The evidence examined, and held insufficient to show that the contract was a subterfuge, or that the owner was operating the mine.
5. SAME--Injuries to Servant--Relation of Parties--Independent Contractor. If the lessee of Indian coal lands sublets the mine without the approval of the Secretary of the Interior, and if an employee of such sublessee sustains injuries by reason of the negligence of the sublessee, the invalidity of the sublease does not strike down the relation of master and servant existing between the sublessee and his employee, nor create the relation of master and servant between the original lessee and the employee of his sublessee, and such employee cannot recover damages from such lessee.
Error from District Court, Le Flore County; Malcolm E. Rosser, Judge.
Action by Robert H. Morehead against the Bokoshe Smokeless Coal Company and Edward Henderson. Judgment for plaintiff, and defendants bring error. Reversed and remanded.
Porter H. Morgan and Shartel, Keaton & Wells, for plaintiff in error Bokoshe Smokeless Coal Co.
J. L. Spangler and Tom W. Neal, for plaintiff in error Henderson.
Rowe & Rowe and Day & DuBois, for defendant in error.
¶1 The plaintiff, Morehead, sued the defendants for personal injuries, upon the theory that they were jointly his employers, and that their joint negligence in giving an order caused his injuries. He alleged that at the time of the injuries he was engaged in cutting and shearing down the top vein of coal in the main slope of the defendant's mine; that he had had no previous experience in doing such work; that he informed the defendants of this inexperience; that the defendants failed to warn him of the dangers attendant upon the work; that they ordered him to cut and shear the coal in the main slope of the mine and failed to warn him of the danger, and that on account of such negligence he sustained the injuries; that after cutting the coal on each side of the slope, and before it had been prized down, they negligently ordered him to clear the track underneath this coal; and that while so doing the coal fell upon him and injured him.
¶2 The most important question in the case is whether the relation of master and servant existed between Morehead and the Bokoshe Smokeless Coal Company, or whether Henderson was an independent contractor, as pleaded by the Coal Company. The Coal Company was operating two or three mines at Bokoshe, but denied that it was operating this mine, or that it was the employer of the plaintiff, and as its defense it pleaded and proved a contract existing between it on the one part and Henderson and others on the other part, in which the company is designated as contractor and Henderson and his associates as subcontractors. By the terms of this contract, Henderson agreed to operate the mine subject to the acts of Congress bearing upon the subject and the rules of the Department of the Interior; to operate the mine in such manner as to insure the production of the largest amount of coal; to maintain in good working order all entrances, gangways, air courses, slopes, shafts, and planes; to maintain pillars where necessary to support the roofs; not to approach nearer than 50 yards to the outside boundaries of the land; and to maintain all buildings and machinery and other appurtenances in good condition at all times. Henderson and his associates, by the contract, assumed all liability in the operation of the mine, and agreed to protect the Coal Company from all claims for damage for personal injury of every kind growing out of the operation of the mine. The subcontractors were to pay a royalty of fifteen cents per ton on all coal mined during the first year, and thereafter a royalty of twenty cents per ton. The sales were to be made by the subcontractors, and collections were to be made by the Coal Company, which should retain its royalty and pay over the balance. The subcontractors were to pay all taxes of every kind. Many other details are provided in the contract. The Coal Company reserved the right to inspect, examine, and survey the premises at any time, and Henderson and his associates agreed to make a survey at least every six months and furnish the Coal Company with a blue print showing the location of all the mine workings. The last paragraph of the contract is as follows:
"In consideration of the premises the said subcontractors hereby covenant and agree to operate all mines which may be dug on said premises in compliance with the laws of the state of Oklahoma, and it is further agreed that all the workings on said premises shall be done under the general supervision of the superintendent of the said contractor."
¶3 The plaintiff claims that this provision of the contract reserves such a right of control in the Coal Company as to make Henderson its foreman and the plaintiff its servant instead of Henderson's servant, while the Coal Company claims that Henderson was an independent contractor, that the plaintiff was Henderson's servant, and that, there being no relation between it and the defendant of master and servant, the action will not lie. There are numerous decisions upon the subject of independent contractors, and an examination of some of them may enable us to reach a correct conclusion upon this question. Three cases have been before this court involving the question. In M., K. & O. Ry. Co. v. Ferguson, 21 Okla. 266, 96 P. 755, it was held that a railroad company, by letting a contract to build its right of way fence to an independent contractor, absolved itself from liability for the negligence of such contractor. In Chas. T. Derr Construction Co. v. Gelruth, 29 Okla. 538, 120 P. 253, it was held that under the terms of the contract in that case, entered into between the city and the construction company, the relation of master and servant existed between the employees of the construction company and the city, but in the contract between the city and the construction company the city reserved a very extensive control and supervision, even to the extent of requiring the contractor to discharge his servants. The measure of control is stated in the opinion as follows:
"The contract provided that the contractor should carry on and prosecute said work during suitable weather as the city's engineer should direct, and to cease work when said engineer deemed it advisable; that said engineer might at any time change form or plan, grade, or section, elevation, or location of any parts or portion of said work as he should find best and proper; that, if such changes increased the amount of work, material, or both, it was to be paid for pro rata at the bid price, and, if it decreased the cost, the same was to be deducted in proportion; that all lines, grade stakes, reference points, and other location details were to be furnished by the engineer, the contractor to observe and preserve the same carefully, etc.; that, if the mayor and council saw fit, they might submit to the contractor such orders, directions, and instructions as they wished for the proper carrying out of said contract, and that said contractor should obey the same; that the mayor and council should have full authority over the work, or they might delegate such authority to an engineer, such to be done by resolution of the council; that the work should be commenced and carried on from point to point as designated by the engineer, who in connection with the mayor and council, should have general supervision thereof, either in person or by properly appointed inspectors; that if at any time any one employed by the contractor appeared to the city's inspector to neglect or refuse to obey orders, or to be incompetent, unfaithful, disorderly, or fail to show proper interest in his work, the contractor, when requested by said inspector, should discharge such party and not re-employ him."
¶4 In Hamilton et al. v. Oklahoma Trading Co. et al., 33 Okla. 81, 124 P. 38, it was held that "laborers engaged to use their employer's truck to truck a car load of flour from the sidewalk into the building are servants and not independent contractors."
¶5 The question, then, for determination is whether...
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