Chas. T. Derr Constr. Co. v. Gelruth

• Decision Date: 31 October 1911
• Docket Number: Case Number: 1562
• Citation: 1911 OK 344,29 Okla. 538,120 P. 253
• Parties: CHAS. T. DERR CONSTRUCTION CO. et al. v. GELRUTH.
• Court: Oklahoma Supreme Court

1911 OK 344

120 P. 253

29 Okla. 538

CHAS. T. DERR CONSTRUCTION CO. et al. v. GELRUTH.

Case Number: 1562

Supreme Court of Oklahoma

Decided: October 31, 1911

Syllabus

¶0 1.MUNICIPAL CORPORATIONS--Sewerage Construction Contracts --Relations of Parties. The contract provided that the construction of the sewer system should be carried on and prosecuted during weather suitable, as the city's engineer might determine, the same to cease during such intervals as said engineer should deem advisable; that said engineer might, at any time, change form or plans, grade or sections, elevation or location of any parts thereof, and if such changes increased the amount of work, material, or both, same was to be paid for pro rata at the bid price, and if it decreased the cost, deduction to be made in proportion; that all lines, grade stakes, reference points and other location details were to be furnished by the city's engineer, the same to be carefully observed and preserved; that if the mayor and council saw fit they might submit to the contractor orders, directions, and instructions for the carrying out of said contract, which should be by him obeyed; that the mayor and council should have full authority over said work, or they might delegate same to an engineer; that said work should be commenced and carried on from point to point as designated by said engineer, who, in connection with the mayor and council, should have general supervision thereof in person, or by properly appointed inspectors; that if, at any time, any one employed by the contractor appeared to such inspector to neglect or refuse to obey orders, or to be incompetent, unfaithful, disorderly, or failed to show proper interest in his work, the contractor, on request of such inspector, should discharge such party and not re-employ him. Held, that the construction company is not an independent contractor.

(a).MASTER AND SERVANT--Sewerage Construction Contracts--Relation of Employees to City. The relation of master and servant existed between the employees of said construction company and the city of Shawnee.

2.NEGLIGENCE--Sewerage Construction Contracts--Assignment--Injuries to Employee--Liability of Assignor. The city of Shawnee let a contract to C. T. D. for the construction and installing of a sewerage system, without any restrictions against the assignment thereof. C. T. D. assigned the same to a construction company; in the work of the construction of said system an employee of said construction company was injured on account of the negligence of said company in not furnishing him a safe place to work. Held, that said contract was assignable, and as to the employees of said company who were injured solely on account of the negligence of the company as to said employee, which negligence did not grow out of the violation of a public duty, that said C. T. D. Co. was not liable therefor.

3.APPEAL AND ERROR--Continuance--Discretion of Court. After the closing of the evidence, plaintiff was permitted to amend his pleadings. The defendants then moved for a continuance on the ground of surprise and the reasonable necessity of the introduction of additional evidence thereon, without specifically setting out the names of the witnesses or the evidence that could probably be produced on another trial, or setting out facts so as to excuse them from specifying the names of the witnesses and the substance of such evidence. Held, that the denial of this motion does not appear to be an abuse of discretion.

4.APPEAL AND ERROR--Amendment of Pleadings--Discretion. During the trial the plaintiff offered evidence as to the expenses incurred during his illness, growing out of the alleged injury, for medical attention, medicines, etc. The same was objected to on the ground that such issue was not raised by the pleadings. The pleadings were then permitted to be so amended, when the evidence was admitted. Held, under the record, not to be an abuse of discretion.

(a).TRIAL--Instructions on Damages--Evidence to Justify. The evidence admitted was to the effect that the plaintiff, during his illness occasioned by said injuries, was attended by four physicians, but neither the number of times of such attendance nor the reasonable value thereof was proved. Held, error to instruct the jury that, if they found the issues in favor of the plaintiff, in assessing the damages they might take into consideration the expense incurred for medical attention, etc., as a part of the recoverable damages.

5.PLEADING--Amendment During Trial. The permitting of the amendment of plaintiff's petition, under the facts in the record, held not to be error.

Error from District Court, Pottawatomie County; J. B. A. Robertson, Judge.

Action by Henry I. Gelruth against the Chas. T. Derr Construction Company and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

J. H. Woods, W. M. Engart, and J. H. Miley, for plaintiffs in error

H. H. Smith and W. T. Williams, for defendant in error

WILLIAMS, J.

¶1 The defendant in error, Henry I. Gelruth, as plaintiff, sued the plaintiffs in error, the city of Shawnee, the Chas. T. Derr Construction Company, and Chas. T. Derr, as defendants, for damages arising out of an injury alleged to have been occasioned whilst in their employ by the negligence of said defendants, their agents, and employees, on or about the 28th day of March, A. D. 1908.

¶2 The questions on this record essential for determination are as follows:

¶3 (1) Is the construction company an independent contractor?

¶4 (2) Is the said Chas. T. Derr liable for the negligence of the construction company, in that the contract for the construction of the sewerage system was let to him by said municipality, he thereafter, being a stockholder therein, assigning the same to the said construction company?

¶5 (3) Did the court err in overruling defendant's motion for a continuance?

¶6 (4) Was there any error in the admission of evidence as to the costs incurred by the defendant in error for medicine and expenses of treatment by physicians, etc.?

¶7 (5) Was there any prejudicial error committed in permitting the amendments by plaintiff of his petition?

¶8 (6) Should a verdict have been directed in favor of either of defendants?

¶9 1. 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.

¶10 Under such state of facts the construction company is not an independent contractor, but the agent of the municipality, the principal, who is liable for the acts of the agent within the scope of his authority. Missouri, Kansas & O. Ry. Co. v. Ferguson, 21 Okla. 266, 96 P. 755; New Orleans, M. & C. R. R. Co. v. Hanning, 15 Wall. 649, 21 L. Ed. 220; Singer Mfg. Co. v. Rahn, 132 U.S. 518, 33 L. Ed. 440, 10 S. Ct. 175; Bibb's, Admr., v. N. & W. R. R. Co., 87 Va. 711, 14 S.E. 163; De Palma et al. v. Weinman et al. (N. M.) 103 P. 782; Conners v. Hennessey, 112 Mass. 96; Forsyth v. Hooper et al., 11 Allen (Mass.) 419.

¶11 2. The contract between the city and Chas. T. Derr was assignable. Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 27 Okla. 180, 111 P. 326. It is insisted, however, that he was not, by such assignment, relieved from liability on account of the negligence of the assignee as to an employee in carrying out said contract. That it was contemplated that he, as contractee, in the construction and installing of the sewer system, would have to make excavations in the streets, and in so doing he must permit the streets to remain in a reasonably safe condition for public travel, seems to be true. That the city owed this duty to the public and could not relieve itself therefrom by placing an independent contractor in charge, nor could such contractor evade the like duty by an assignment of his contract to another, seems also to be true. North Chicago St. Ry. Co. v. Dudgeon, 184 Ill. 477, 56 N.E. 796. The defendant in error, seeking damages for the alleged injury to himself, was neither a traveler nor occupying the same as a public street. The injuries did not grow out of the public use for the street, but out of a breach of duty of the master to the servant in not affording a safe place in which to work. The case of Water Company v. Ware, 16 Wall. 566, 21 L. Ed. 485, is not in point. There a traveler upon a public street was injured because of a dangerous agency maintained in the street. The...