Green v. Cherokee Pipe Line Company

• Decision Date: 23 November 1966
• Docket Number: Civ. No. 6075.
• Citation: 261 F. Supp. 118
• Parties: William M. GREEN, Plaintiff, v. CHEROKEE PIPE LINE COMPANY, a corporation, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

261 F. Supp. 118

William M. GREEN, Plaintiff, v. CHEROKEE PIPE LINE COMPANY, a corporation, Defendant.

Civ. No. 6075.

United States District Court N. D. Oklahoma.

November 23, 1966.

Gerald D. Swanson, Tulsa, Okl., for plaintiff.

Rogers, Donovan, & Rogers, Tulsa, Okl., for defendant.

ORDER

DAUGHERTY, District Judge.

After a jury trial resulting in a verdict for the plaintiff the defendant has filed an alternative motion for judgment notwithstanding the verdict or motion for new trial.

Plaintiff was a truck driver for Squaw Transit Company. His employer was engaged by the defendant to pick up a large quantity of "pipe dope" near Wichita, Kansas, and transport the same to Enid, Oklahoma. This "pipe dope" was not needed by the defendant for its pipe line work at the Wichita location. It was consigned by the defendant by a bill of lading to the Tulsa Pipe Coating Company. The plaintiff was subject to standing instructions from his employer, Squaw Transit Company, to see that his truck-trailer unit was properly loaded with reference to the position of weight over the axles, balancing the load, prevention of load shifting, lashing and related matters pertaining to proper loading. The plaintiff testified that a part of his job as a driver for Squaw Transit Company was to load and unload his truck-trailer unit. Upon the plaintiff arriving at the location near Wichita, a foreman of defendant identified the material to be loaded and its various locations and stated that his men would load the cartons of "pipe dope" into a front end loader and deliver the same onto the bed of the trailer or float which formed a part of the plaintiff's truck-trailer unit. The cartons were heavy.

In this operation, the testimony of and on behalf of the plaintiff was that the defendant (by its front end loader operation) was guilty of negligence in over-loading the front end loader, rolling some of the cartons out of the front end loader without warning and into the plaintiff who was on the trailer bed, thereby knocking the plaintiff from the trailer bed to the ground with two of the cartons rolling off the trailer bed onto the plaintiff while on the ground causing the plaintiff the personal injuries, pain and suffering and expenses involved herein. It was the testimony on behalf of the defendant that the plaintiff stepped or backed off the trailer bed without any negligence being committed by the defendant in connection therewith.

The defendant moved for a directed verdict at the close of the evidence which was denied. The Court, therefore, will first consider the defendant's motion for judgment notwithstanding the verdict.

Squaw Transit Company carried workmen's compensation insurance which covered the plaintiff. Plaintiff received benefits therefrom by a proceeding in the Oklahoma State Industrial Court totaling approximately $5000.00. Plaintiff brings this action against the defendant on the basis that he was injured by the defendant who was a negligent third party which action is permitted by the Oklahoma Workmen's Compensation Law¹; that plaintiff was not an employee of the defendant at the time of his injury; that at the time of his injury the Squaw Transit Company, his employer, was not an independent contractor or a sub-contractor of the defendant regarding defendant's work in the pipe line construction business; that the work of the plaintiff and that of his employer, Squaw Transit Company, (being a licensed common carrier for hire) was not an integral part of the work or business of the defendant (pipe line construction) either at the time of the injury of the plaintiff or at any other time and that the defendant was not secondarily liable under the Workmen's Compensation Law of Oklahoma behind Squaw Transit Company to the employees of Squaw Transit Company, including the plaintiff, should they or he become injured in the course of their or his employment.

The defendant asserts in connection with the pending motions that Squaw Transit Company was a sub-contractor or an independent contractor of the defendant at the time of the accident involved herein; that the defendant was therefore secondarily liable under the Oklahoma Workmen's Compensation Law behind the Squaw Transit Company for the injuries received by the plaintiff; that the defendant is thus protected and covered by the workmen's compensation insurance carried by Squaw Transit Company, and that the exclusive remedy of plaintiff regarding his said injury is under workmen's compensation and in the Oklahoma State Industrial Court where he has proceeded and received certain benefits which now constitutes estoppel by judgment and res adjudicata.

This is a diversity case and this Court is bound by the substantive law of the State of Oklahoma. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). It is the law of Oklahoma that an employee of a sub-contractor or an independent contractor, engaged in assisting the principal contractor or employer in an integral part of the work or business of the principal contractor, is covered by the workmen's compensation insurance afforded by the sub-contractor or independent contractor and the principal contractor or employer is secondarily liable to the employees of either in case either fails to obtain this insurance protection for their employees. By reason of this secondary liability under workmen's compensation the principal contractor or employer is not liable in tort at common law to an injured employee of the sub-contractor or independent contractor. Mid-Continent Pipe Line Company v. Wilkerson (1948), 200 Okl. 335, 193 P.2d 586; Jordan v. Champlin Refining Co. et al., 200 Okl. 604, 198 P.2d 408 (1948); Deep Rock Oil Corporation et al. v. Howell, (1948), 200 Okl. 675, 204 P.2d 282; Horwitz Iron & Metal Co. et al. v. Myler, (1952), 207 Okl. 691, 252 P.2d 475; Chickasha Cotton Oil Company et al. v. Strange et al. (1939), 186 Okl. 136, 96 P.2d 316. Therefore, it is necessary herein to determine if the Squaw Transit Company at the time of the...