City of Tulsa v. Mcintosh
| Citation | 90 Okla. 50,215 P. 624,1923 OK 109 |
| Decision Date | 20 February 1923 |
| Docket Number | Case Number: 40940 |
| Parties | CITY OF TULSA v. MCINTOSH et al. |
| Court | Supreme Court of Oklahoma |
¶0 1. Release -- Effect of Settlement by One Joint Tort-Feasor.
Though a settlement for compensation between one joint tort-feasor judgment debtor and the injured party will, in part, compensate the injured party and reduce the damages, the other tort-feasor judgment debtor is obligated to pay such a settlement and the consequent release of the one does not release others liable at law to see the injured party fully compensated.
2. Municipal Corporations -- Independent Contractor -- Construction of Contract.
The generally accented meaning of the term, "independent contractor" negatives the close supervision of details of the work by the employer, and where the contract between the parties clearly confers a supervisory power upon the representative of a municipal corporation and over a public improvement contractor, the relation between the municipality and the contractor can be none other than master and servant.
3. Negligence -- Proximate Cause--Intervening Cause--Questions for Jury.
The question of negligence, where there is competent evidence introduced from which reasonable men might draw different conclusions, is one for the jury, and under like circumstances the question of proximate cause is one for the jury.
4. Same.
Where the evidence reasonably tends to establish original or primary negligence, and such evidence raises the question of the proximate cause of the injury, whether the original negligence or an intervening and independent cause, and reasonable men may draw different conclusions therefrom, the case is one for the jury.
5. Same--Liability of Defendant.
Where the defendant is guilty of original negligence, and from the evidence the inference may be reasonably drawn that the original negligence placed in motion the intervening and independent act, which was the immediate cause of the injury but that such injury would not have happened without the original negligence, the defendant will be held liable.
6. Municipal Corporations--Care of Explosives Used in Construction Work--Liability for Damages.
Where a city in constructing a sewer is using explosives, such as dynamite and caps, leaves such explosives in an unlocked tool box in one of the public streets near the playgrounds of one of the city's schools, where from 100 to 200 small children play while attending school, and a boy eight years of age takes from the box a number of the dynamite caps and distributes them among the school children, and a child eleven years of age receives one of the caps and takes it to his home, where he explodes it with a match, which explosion inflicts serious injury to such child, the city will be held liable for the damages.
7. Same--Judgment for Personal Injuries.
Record examined, and held, that there exist no ground for reversal of the judgment.
Error from District Court, Tulsa County; Owen Owen, Judge.
Action by Fred McIntosh, by his next friend, Andrew M. McIntosh, against the City of Tulsa et at., to recover damages for personal injuries. Judgment for plaintiff for $ 25,000. Defendant City of Tulsa brings error. Affirmed.
I. J. Underwood and Harry L. S. Halley, for plaintiff in error.
J. P. O'Meara, Chas E. Bush, and A. F. Moss, for defendants in error.
¶1 This is an appeal prosecuted by the city of Tulsa, a municipal corporation, one of the defendants below, from a judgment of the district court of Tulsa county, entered upon the verdict of a jury for the sum of $ 25,000 in the cause originally brought by the defendant in error Fred McIntosh, by his next friend, Andrew M. McIntosh, as plaintiff, against the plaintiff in error and the defendants in error C. O. Frye and Howard Frye, as defendants. For convenience, the parties, when not otherwise designated, will be referred to by the denominations they bore in the court below.
¶2 The facts are, in substance, as follows: Fred McIntosh, the plaintiff, was a small school boy, eleven years of age, attending one of the city schools of the city of Tulsa. The city of Tulsa, by virtue of its powers as a municipal corporation, was installing a sewer on a street close to the playgrounds of the school which the plaintiff attended. In order to accomplish the installation of the sewer, the city of Tulsa advertised for bids from contractors in the usual manner of letting contracts for public improvements, and after the regular procedure, awarded the contract to the defendants C. O. Frye and Howard Frye. The contract, which was introduced in evidence, does not materially differ from others of its type in general use at this time.
¶3 During the progress of the work, a great amount of blasting was necessary, and for this purpose the Fryes kept a tool chest near their work in which was stored, in addition to tools, blasting powder and dynamite caps for exploding the powder. The tool chest was left in the street near the playgrounds of the school where the plaintiff attended.
¶4 One of the schoolmates of the plaintiff took a large number of the dynamite caps from the chest and distributed them among his playmates, the plaintiff being one. The plaintiff took the caps given him to his home, thinking that the caps, if lighted, would "go off like a firecracker," and obtained some matches for the purpose of producing an explosion. Holding a cap in his hand, he proceeded to light it and await the explosion. The result was the loss of a part of his hand and ruined eyesight.
¶5 The plaintiff, on the tenth day of July, 1918, filed his petition in the court below, which petition was demurred to by the city of Tulsa. Upon the overruling of this demurrer, the city of Tulsa filed its separate answer, alleging, in substance, that the Fryes were "independent contractors," and also that the plaintiff's injuries were too remote from any negligence of the city to entitle him to recover. The Fryes also filed a separate answer, but the merits of that branch of the case are not now here on appeal.
¶6 On the 5th day of May, 1919, the case went to trial, and, prior to the introduction of evidence, the city of Tulsa moved for a judgment on the pleadings. This motion was overruled, and is raised among the numerous assignments of error; but, in view of the decision of the court to follow, the court does not feel it necessary to pass upon that question.
¶7 The plaintiff introduced as a part of the evidence the contract between the city of Tulsa and the Fryes, and also called the boy who had taken the caps from the tool chest. He testified, in substance, that he had taken two full boxes of the caps a day or so before the day the plaintiff was injured; that he had hidden them in his father's barn; and that on the day that the plaintiff was injured, he took one of the boxes from its hiding place and gave the plaintiff some of the caps it had contained.
¶8 The plaintiff testified to the facts substantially as hereinbefore set forth.
¶9 At the conclusion of the plaintiff's testimony, the city of Tulsa demurred to the evidence of the plaintiff, which motion was overruled and exceptions taken. On the conclusion of the defendant's testimony, the city moved for a directed verdict upon the testimony introduced, for the reason that the same was not sufficient to warrant a judgment against the city of Tulsa. This motion was also overruled and exceptions duly taken. The city offered certain instructions for the jury, which were refused, and the court thereupon charged the jury in its own words.
¶10 On the 7th day of May, 1919, the jury returned a verdict in favor of the plaintiff against the city of Tulsa and C. O. Frye and Howard Frye in the sum of $ 25,000, which verdict was duly excepted to by the city and motion for new trial was made, overruled, and the case appealed.
¶11 It appears that, pending the appeal by the city of Tulsa, the defendants C. O. Frye and Howard Frye reached a settlement and discharge of their liability with and to the plaintiff, and counsel for the city seems to be under the impression that this settlement should discharge their client. With this, the court is unable to agree. It is true that some authority does exist to the effect that a release of one joint tort-feasor releases all others, but this court believes that that line of authority is predicated upon a confusion of the principles of suretyship with those of damage for wrong-doing. The decision in the case of Bland v. Lawyer-Cuff Company, decided by this court February 12, 1918, reported in 72 Okla. 128, 178 P. 885, considers the authorities extensively, and, we believe, in a correct light.
¶12 It is the purpose of the law, and its very intent, that every wrongdoer should be individually liable to see that the party injured by this tort be compensated. There is no common-law rule or statutory enactment which implies a suretyship between joint tort-feasors, or any privity between them and the party injured by their tort. Though a settlement for compensation between one joint tort-feasor judgment debtor and the injured party will, in part, compensate the injured party, and thus reduce the damages that the other judgment debtor is obligated to pay, such a settlement and the consequent release of one joint tort-feasor judgment debtor do not release others liable at law to see the injured party fully compensated. Carey v. Bilby, 63 C. C. A. 361, 129 F. 203; Edens v. Fletcher, 79 Kan. 139, 19 L.R.A. 618, 98 P. 784.
¶13 One of the two main contentions of counsel, and one of the most material questions on this appeal, is the defense of the city that C. O. Frye and Howard Frye were in the relation of "independent contractors" to the city of Tulsa, under their contract introduced in evidence. This question is not a new one in this state, and the law governing the determination of the nature of a contractual relation between parties is too broadly accepted and too well...
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