Flick v. Crouch

• Decision Date: 14 September 1976
• Docket Number: No. 45326,45326
• Citation: 1976 OK 116,555 P.2d 1274
• Parties: Melba Jean FLICK, Administratrix of the Estate of Ray Louis Flick, Deceased, Appellant, v. Elmer CROUCH, d/b/a Crouch Welding Service, et al., Appellees.
• Court: Oklahoma Supreme Court

Page 1274

555 P.2d 1274

Melba Jean FLICK, Administratrix of the Estate of Ray Louis Flick, Deceased, Appellant, v. Elmer CROUCH, d/b/a Crouch Welding Service, et al., Appellees.

No. 45326.

Supreme Court of Oklahoma.

Sept. 14, 1976.

Rehearing Denied Nov. 16, 1976.

Appeal from the District Court of Oklahoma County; Homer Smith, Judge.

Trial Court sustained Appellees' demurrer to the evidence of Appellants and refused to apply the doctrine of res ipsa loquitur in wrongful death action resulting from collapse of a drilling rig. REVERSED AND REMANDED WITH DIRECTIONS.

Rinehart, Cooper & Stewart, Oklahoma City, Frank Seay, Dick Bell, Seminole, for appellant.

McKinney, Stringer & Webster, by Kenneth N. McKinney, Jack O'Toole, Fred Black, Loyd Benefield, Savage, Gibson, Benefield & Shelton, Robert D. Epperson, Fenton, Fenton, Smith, Reneau & Moon, Gary C. Bechman, Rhodes, Hieronymus, Holloway & Wilson, Oklahoma City, for appellees.

Elmer Crouch, pro se.

A. L. McLeary, pro se.

BARNES, Justice:

The parties herein have filed briefs dealing with the question of the applicability of the doctrine of res ipsa loquitur to establish prima facie negligence against multiple defendants who had done welding in relegging a drilling rig shortly before its collapse resulting in the death of Appellant's decedent.

The pertinent facts are as hereinafter related. Decedent, Ray Louis Flick, employed by Parker Drilling Company as a roughneck, was killed December 11, 1963, while engaged in drilling a well for oil and gas near Coal, Oklahoma. The driller of Appellant's decedent's drilling crew was in the process of pulling pipe from the hole, which was approximately 3,800 feet deep, when the derrick upon which Appellant's decedent was working collapsed causing his death.

Prior to the collapse of the oil rig, deceased's employer, Parker Drilling Company, hereinafter referred to as 'Parker Drilling,' made the decision to 're-leg' the structure in the hope of increasing its total strength and weight capacity. This was accomplished by welding additional iron angles and braces to the legs of the derrick and repairing and replacing crossbraces on the derrick.

Parker Drilling had no welders in its employ. It hired Appellee, Elmer Crouch, to do the work, and he in turn engaged the other welder Appellees to assist him by doing the welding because of the size of the job and the need to finish the job in a short time. Work was performed both night and day and all Appellees participated in making the allegedly negligent welds causing the re-legged derrick to collapse. Each welder worked all over the rig and no one but the welders knew what weld was made by what welder. Crouch supervised the welders and signed their tickets to verify the work they had done. Each welder testified he carried on an independent business and had billed Parker Drilling for the work done on the rig, and considered himself as a self-employed person. Parker Drilling did not carry any of the welders on its payroll and no income tax or social security withholding was made on any of the checks to Appellee welders.

The rig was a rotary jackknife derrick manufactured by Lee C. Moore, Inc., in March, 1951. Parker Drilling assigned the number 69 to this rig. Its rated lifting capacity as originally manufactured was 480,000 pounds, before the re-legging operation.

On the date of the derrick's collapse, the pipe and equipment being hoisted placed a strain of 150,000 pounds on the derrick, well within the rated capacity even before the re-legging operation. The rig operated for five days until December 11, 1963, when operations were halted so that a welder, not joined as a defendant in this case, could make repairs on the equipment. A short time later, a loud, popping noise was heard, the lights went out and the rig collapsed, killing Appellant's decedent.

This case was first considered by our Court in Case No. 41,512, where we held the Trial Judge was in error in sustaining defendants' plea to the jurisdiction of the court, as a matter of law, and remanded it for trial. The trial court had originally sustained defendants' plea to the jurisdiction and held, as a matter of law, that plaintiff's claim was barred against these defendants as the exclusive jurisdiction over the matter was within the State Industrial Court. This holding was based upon the trial court's finding, after an evidentiary hearing, that the welders were employees of Parker Drilling and co-employees of the deceased, and that they were therefore immune from common law liability in tort for negligence under the terms of 85 O.S.1961 § 44(b). Plaintiff appealed, contending that the welders were independent contractors, not employees of Parker Drilling. In that opinion, we held in part that the evidence concerning the status of Elmer Crouch, the welder who hired the other welders and supervised the project, was conflicting as to whether he was an employee or an independent contractor. We further held that since his status formed a material issue in the case, the evidence, being subject to more than one inference, was not capable of being decided as a matter of law, but must be submitted to a jury for a factual determination. In so ruling, the Court stated:

'Conflicting inferences may be drawn from the evidence as to the crucial issue of Crouch's relationship to Parker. This issue may not be decided by the court but must be submitted to the jury. Since the status of Crouch remains undetermined, it is not necessary for us to pass upon the relationship of the other welders either to Crouch or Parker. The nature of that relationship depends upon Crouch's status in relation to Parker.'

When the case came up for trial again, the trial court held that the question whether the Appellees were employees of Parker Drilling or independent contractors would be a question for the jury, because under the evidence introduced it was a disputed question of fact. Further, the Court held that the evidence indicated the rig fell due to the bad welds, and there was no intervening cause of the accident. Then the Court went on to say:

'Now, in the view of the Court, the controlling factor in this case and on which I have determined that the demurrer should be sustained is the question of the instrumentality or instrumentalities, the instrumentalities being the welds, the instrumentality being the rig, were not under the control of the defendants, but was in fact under the control of Parker Drilling Company, specifically its employees, Ben Johnson, Pettit, the driller--who was on the well on location, and also Wagnon, I believe, who was the man who testified--who there was testimony about who made the original arrangements with the defendant, Crouch.

'There is no doubt that the defendants, seven defendants excluding Crouch at this point, did perform their welds under the supervision of Mr. Crouch and that Mr. Crouch--I say performed their welds--I don't mean individually, but performed their work, total work, being told where to place the welds and where to place the cross-members and other sub-structure although not how in fact to perform their individual welds.

'Crouch and Ben Johnson did this. Crouch himself did it under the supervision of Ben Johnson and later Pettit.

'Two or more of the defendants in addition to Crouch or with Crouch and Pettit also performed welds at the location of the drill site. We don't know who those were.

'The same rule would apply. These...