Corban v. Skelly Oil Company
| Decision Date | 26 June 1958 |
| Docket Number | No. 16984.,16984. |
| Citation | 256 F.2d 775 |
| Parties | Otis L. CORBAN, Appellant, v. SKELLY OIL COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Robert M. Lowe, Texarkana, Ark., Ross R. Barnett, Jackson, Miss., P. Z. Jones, Barnett, Jones & Montgomery, Jackson, Miss., William F. Riley, Natchez, Miss., for appellant.
Gayle M. Pickens, Tulsa, Okl., P. H. Eager, Jr., Jackson, Miss., for appellee.
Before HUTCHESON, Chief Judge, and JONES and BROWN, Circuit Judges.
In a personal injury action based on negligence and removed to the United States District Court by reason of diversity of citizenship, a summary judgment was entered in favor of the defendant, Skelly Oil Company. The plaintiff, Otis L. Corban, has appealed.
Skelly Oil Company, which we will abbreviate as Skelly, had producing oil wells in a field in Arkansas near Texarkana. The pump in one of these wells stopped working. Skelly's employee, George Hoover, described as a pumper of the particular well, notified his superior, Arthur L. Thomas, that the pump was not operating. Thomas contacted J. B. Downs, Inc., which we will refer to as Downs, and requested it to get the well in operation again. Downs and its employees were specialists in the servicing and repair of well equipment. On March 18, 1954, Downs sent well pulling and other equipment to the well. Included were long handled Stillson wrenches. In the Downs crew were R. B. Germany, the crew foreman, Otis L. Corban, the appellant, Talmage Moore, Billy March and M. J. Short. The pump was about 4,000 feet below the surface and near the bottom of the well. It operated inside the tubing of the well. The tubing consisted of lengths of pipe coupled together extending from a short distance above the surface to the bottom of the well. The pump was operated by a string of rods, called sucker rods, running inside the tube from the plunger of the pump to a walking beam connected with the engine at the surface. The sucker rods were about 25 feet in length and threaded on each end. They were connected by the threaded ends being screwed into coupling boxes.
In order to repair the pump it was necessary to bring it to the surface. To do this the tubing was drawn up and dismantled. It was also necessary to dismantle the sucker rod into its component parts as the tubing was withdrawn. This operation is known as a stripping job. In stripping it is necessary to back-off the sucker rod. In so doing a counterclockwise torque is applied on the rod at the surface until one of the connecting joints loosens and becomes unscrewed. The portion of the rod above this joint or coupling is then brought to the surface. As the tubing is pulled up and dismantled the sucker rod is again brought to the surface and the backing-off process is repeated until the pump is eventually surfaced. One of the methods of backing-off the sucker rod is by using a stripper-wheel, some times called a back-off wheel. This device is a circular appliance having a hub in the center which is to be attached to the sucker rod. Spokes radiate from this hub to a circular rim. The turning of this wheel creates the torque used in the stripping job. Another method of performing this operation is by affixing Stillson wrenches to the sucker rods and creating the torque by turning the rod with the wrenches. Still another method is the use of chain tongs. The J. B. Downs Corporation owned several back-off wheels but did not bring one to this job.
J. B. Downs, the head of the company bearing his name, testified that his foremen were instructed, where a stripping job seemed necessary, to discuss the matter with the company representative if one was at the job site and, within the bounds of reason, to follow the suggestions of the company representative.
Hoover, the appellee's pumper, was its only employee at the well. The appellant testified on deposition that when it was ascertained that a stripping job was to be done, Germany, the foreman of the Downs crew, went to Hoover and asked him what he wanted done. He quoted Hoover as telling Germany to use the thirty-six inch Stillson wrenches. As Talmage Moore related the conversation, Germany told Hoover that he had used thirty-six inch Stillson wrenches before to break pumps loose and would use the Stillson then if it was alright, and Hoover told Germany to go ahead and try it. Hoover stated that he had no discussion with any of the Downs crew about the work or how it was to be done. Germany died before the case was decided. The directions to Corban and the others of the Downs crew were given by Downs' foreman, Germany. It is not contended that Hoover gave any orders or suggestions directly to Corban. Two thirty-six inch Stillson wrenches were affixed to the rod. One of these was placed above and the other below a joint or coupling. With two men working on each wrench the rod was twisted in a counterclockwise direction. The coupling between the two wrenches loosened and the joint became unscrewed. This released the upper wrench and the entire force of the torque was shifted to the lower wrench. The lower wrench spun out of control and struck Corban who was one of those manning the lower wrench. He was injured and sought damages from Skelly, asserting that the use of the Stillson wrenches was negligence for which Skelly was responsible because Skelly's pumper ordered that they be used, and that whether or not such order was given, Skelly had the right to control and owed to Corban the non-delegable duty to see that the work was done with reasonable care. Skelly asserted that its pumper, Hoover, had no authority to direct the work and did not, in fact, attempt to direct it. Skelly denied that it owed Corban any duty to see that the work was done with reasonable care and alleged that Corban's own negligence caused the injury. The district court granted Skelly's motion for a summary judgment and set forth its reasons for so doing in a letter opinion.1
The Arkansas Workmen's Compensation Law contains a provision which provides for "statutory employers".2 The provision is valid. Brothers v. Dierks Lumber Co., 217 Ark. 632, 232 S.W.2d 646. By another provision of the Arkansas statute third party tort liability is preserved.3 One who contracts for the services of an independent contractor has, we think, the same liabilities and immunities as does a prime contractor under the statute, and the independent contractor is in the same position as a subcontractor. 58 Am.Jur. 614, Workmen's Compensation § 57. If the principal, Skelly, was in legal effect the employer of Corban, his remedy under the Workmen's Compensation Act was exclusive, but if Skelly was not an employer, either actual or statutory, and Corban was not an employee, Skelly was a third party under the Arkansas statute and subject to a common law tort action for negligence. Anderson v. Sanderson & Porter, 8 Cir., 1945, 146 F.2d 58; Carroll v. Lanza, D.C.W.D.Ark.1953, 116 F.Supp. 491, Lanza v. Carroll, 8 Cir., 1954, 216 F.2d 808, Carroll v. Lanza, 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183; Baldwin Company v. Maner, 1954, 224 Ark. 348, 273 S.W.2d 28. Since Downs carried workmen's compensation insurance, Skelly was not a statutory employer.
It is the general rule that a prime contractor is not the employer of those hired by an independent subcontractor. Baldwin Company v. Maner, supra. And of course those hired by an independent contractor are generally not the employees of the principal. In order for Corban to recover he must show negligence of Skelly in directing the manner of performing the work or negligence in failing properly to exercise a duty to control and direct the work. If there was no control exercised and no duty to control, an essential ingredient of Corban's right of action is missing. But, says Skelly, if there was any such control exercised or right of control present Corban was or became the actual, as distinguished from the statutory, employee of Skelly and limited in his recovery to a workmen's compensation award. The Supreme Court of Arkansas in stating the test in determining whether the relationship is one of employment or of independent contractor has quoted from 27 Am.Jur. 486, Independent Contractors, § 6, the following:
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