Exchange v. Sutfin

• Decision Date: 20 November 1945
• Docket Number: Case Number: 31399
• Citation: 166 P.2d 434,1945 OK 302,196 Okla. 567
• Parties: CASUALTY RECIPROCAL EXCHANGE et al. v. SUTFIN
• Court: Oklahoma Supreme Court

1945 OK 302

166 P.2d 434

196 Okla. 567

CASUALTY RECIPROCAL EXCHANGE et al. v. SUTFIN

Case Number: 31399

Supreme Court of Oklahoma

Decided: November 20, 1945

Syllabus

¶0 1.NEGLIGENCE--Negligence and proximate cause as question for jury.

Where there is competent evidence on the question of negligence introduced from which reasonable men might draw different conclusions, it is one for the jury, and under like circumstances the question of proximate cause is one for the jury.

2. AUTOMOBILE--Rules and regulations of Corporation Commission could not exclude motor carrier's employees from liability insurance coverage required by statute.

By virtue of 47 O. S. 1941 § 169 the liability insurance coverage, required to be filed by the motor carrier thereunder, must include compensation for death of the carrier's employees resulting from the operation of the carrier for which such carrier is legally liable, and the Corporation Commission is without power to exclude the carrier's employees from such coverage by rules and regulations adopted by it under 47 O.S. 1941 § 162.

Appeal from District Court, Seminole County; Bob Howell, Judge.

Action for wrongful death by Mrs. Esther Sutfin, administratrix of the estate of Fitzhugh Sutfin, deceased, against the Casualty Reciprocal Exchange and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Butler & Reinhart, of Oklahoma City, and Horsley & Epton, of Wewoka, plaintiffs in error.

Pryor & Wallace, of Wewoka, and Bishop & Bishop, of Seminole, for defendant in error.

CORN J.

¶1 Esther Sutfin, as administratrix of the estate of Fitzhugh Sutfin, deceased, brought this action for damages for wrongful death of and for pain and suffering of Fitzhugh Sutfin, deceased, against S. R. Hazelrigg, d/b/a S. R. Hazelrigg Trucks, and his insurance carrier, Casualty Reciprocal Exchange, a corporation.

¶2 The plaintiff alleged that the defendant Hazelrigg was negligent in knowingly ordering the deceased to go on the job while sick and without rest and work without relief for more than three days and in furnishing him a car known by said defendant to have a defective steering gear, which were the direct and proximate cause of the accident and the resultant injury to and death of Fitzhugh Sutfin, deceased. Her first cause of action was for damages for wrongful death and the second for the pain and suffering. The Casualty Reciprocal Exchange, a corporation, was made a party defendant by reason of the fact that it was the insurance carrier on the motor vehicles operated by defendant Hazelrigg and liable to the extent of such insurance for the damages caused by the negligence of such defendant in the operation thereof.

¶3 Motions to strike and demurrers predicated upon the improper joinder of the insurance carrier were overruled and exceptions saved.

¶4 Both parties separately answered by way of a general denial and then alleged that the injury and death of Sutfin, an employee, did not come within the purview of the insurance coverage and that therefore the insurance company was improperly joined as a party defendant. In addition, it was alleged that the accident was the result of the decedent's failure to exercise ordinary care.

¶5 Fitzhugh Sutfin, deceased, had been in the employ of the defendant S. R. Hazelrigg, d/lo/a S. R. Hazelrigg Trucks, for about five years prior to his death. He was what was known as a "truck pusher." The defendant Hazelrigg owned and operated 25 or more trucks under a certificate of convenience and necessity from the Corporation Commission of the State of Oklahoma, and as required by law insurance coverage was provided by the Casualty Reciprocal Exchange. The defendant carrier hauled oil field equipment and other equipment for hire. It was the duty of the deceased to go on the various jobs and see that the men were working, oversee the loading of the trucks, and in every way facilitate the moving of the freight. Hazelrigg furnished the deceased an automobile to carry on the work. He was on call 24 hours a day. He lived in the yards maintained by his employer in Seminole.

¶6 The record discloses that on Thursday evening before the accident he drove from the yard in Seminole to Cushing for the purpose of taking a tire and tube to a disabled truck; that he didn't get home until 3 or 4 o'clock a. m.; that at the time he was suffering from a bad cold and running a temperature; that he immediately went to bed; that about two hours later, around 6 a. m., his boss called him by telephone; that his wife advised the boss that he was ill and was in bed; the boss advised her it was an emergency and she called the deceased to the phone; that the deceased told the boss he was sick and couldn't work; that after he was told it was an emergency he agreed to go on the job; that the defendant Hazelrigg was to move a rig for the Shell Oil Company; said company demanded that the deceased oversee the job; that he was on the job all Friday night and Saturday morning; that the truck drivers and helpers worked in shifts; that the work was being done near the town of Cromwell, Okla.; that about noon on Saturday the deceased started to drive the car furnished him to town to get lunches for the men; that on the way he passed a truck and that after going about 150 feet past the truck his car swerved off the road into the ditch; that he received serious and painful injuries from which he died three days later; that at the time he passed the truck he was driving about 30 miles per hour.

¶7 The evidence on behalf of the plaintiff further shows that the car furnished the deceased was a 1940 Chevrolet with approximately 70,000 miles on it at the time of the accident; most of the miles were put on it over rough oil field roads; several months prior to the accident the defendant carrier sold it to a former employee; during the time said employee owned it he had considerable trouble with the steering gear; the car would weave back and forth across the road, at least once it had gotten out of control and gone into a ditch by reason of the steering gear having come down: he had a drag length put on the steering gear; he continued to have the same trouble off and on and about two months after the new drag length had been put on he found it about worn into and he again had it replaced; because of the condition of the car he quit using it about the 1st of April, 1941; the defendant carrier came after it two or three weeks thereafter; and at the time he delivered the car to said defendant he told him the steering gear was bad and should be replaced, and thereafter the said defendant turned the car over to the deceased without making any repairs and within a few weeks thereafter the accident involved herein occurred. An expert mechanic who testified on behalf of the plaintiff stated that a bad steering gear, bad king pins, worn out bushings, tie rods or drag length, flat springs, loose camber and caster or axle could have caused the car to swerve across the road and get out of control.

¶8 The evidence on behalf of defendants as to the condition of the car was to the effect that Hazelrigg had no knowledge of the defective condition of the steering gear; that he drove it a few times before turning it over to the decedent and noticed nothing wrong with it; the decedent made no complaint about the condition of the car: said defendant maintained a garage and advised all employees to take the ears and trucks to the garage when repairs were needed; after the accident the only repairs made were things caused by the accident; no part of the steering gear had been replaced; and since the accident said defendant had driven the car to California and back without any trouble.

¶9 The trial court overruled demurrers to the evidence and motions for directed verdict by each of the defendants. Exceptions were saved.

¶10 From a verdict and judgment for plaintiff each defendant appealed. The parties are referred to herein as they appeared in trial court.

¶11 The defendants first contend that the evidence failed to show the existence of negligence on the part of the defendant carrier and that the negligence of such carrier was the proximate cause of the injuries resulting in the death of plaintiff's decedent.

¶12 It is the settled rule in this jurisdiction that if there is any evidence which reasonably tends to prove either directly or indirectly or by permissive inference the essential facts, the verdict of the jury must stand. Marlernee Oil Co. v. Kerns, 187 Okla. 276, 102 P.2d 836. Negligence may be established by circumstantial evidence and the reasonable inferences to be drawn therefrom, and the proximate cause of the injury may also be determined from circumstantial evidence, Griffin Grocery Co. v. Scroggins, 145 Okla. 9, 293 P. 35; Marland Refining Co. v. Snider, Adm'r, 125 Okla. 260, 257 P. 797. Where there is competent evidence on the question of negligence introduced from which reasonable men might draw different conclusions, it is one for the jury, and under like circumstances the question of proximate cause is one for the injury. Palacine Oil Co. v. Philpot, 144 Okla. 123, 289 P. 291; Highway Const. Co. v. Shue, 173 Okla. 458, 49 P.2d 203.

¶13 There is authority to the effect that where overexertion due to excessive hours of employment exacted by the employer caused or contributed to accidental injury, the employer is liable, 35 Am. Jur. 628; Woodruff v. Phillips, 138 Okla. 77, 280 P. 449; Great Northern Ry. Co. v. Couture, 14 K. B. 316, 7 Ann. Cas. 190; Republic Iron & Steel Co. v. Ohler, 161 Ind. 393, 68 N. E. 901. Of course, where the employee merely overtaxes himself, there is no liability on the part of the master. The employee must determine for himself whether his health and strength are adequate for the job to be performed, Warden-Pullen Coal Co. v. Wallace, 176 Okla. 604, 56 P.2d 802. And where the master predicates his defense on the theory that the accident was due to employee falling asleep while...