Gypsy Oil Co. v. Mcnair

• Decision Date: 08 December 1936
• Docket Number: Case Number: 25869
• Citation: 179 Okla. 182,64 P.2d 885,1936 OK 776
• Parties: GYPSY OIL CO. v. McNAIR
• Court: Oklahoma Supreme Court

1936 OK 776

64 P.2d 885

179 Okla. 182

GYPSY OIL CO. v. McNAIR

Case Number: 25869

Supreme Court of Oklahoma

Decided: December 8, 1936

Syllabus

¶0 1. MASTER AND SERVANT - Requisite Conditions to Render Master Liable for Failure to Furnish Prompt Medical Aid to Sick or Injured Employee.

In order for there to be a recovery from an employer for his failure to furnish prompt medical aid to a sick or injured employee, there must be facts tending to show that such employee was in a helpless condition and unattended by any person, other than fellow employees, whose duty it was to care for him, and that the stricken employee would probably suffer loss of life or serious bodily harm unless such medical aid was provided, and that the employer or his agent had, or by the exercise of due care would have had, notice thereof.

2. SAME - Promise of Agent Without Scope of Authority to "Go Get a Doctor" Held not to Place Employer Under Duty to Furnish Medical Aid.

Where there is no duty on the employer to furnish medical aid to an employee under the law as set out in syllabus 1 hereof, it is not within the scope of the authority of an agent to place the employer under a duty to furnish such medical attention by stating, "I will go get a doctor," after the deliver of such employee to his home and into the custody of his wife.

3. SAME - Action Against Employer for Death of Employee From Alleged Heatstroke - Evidence Held not to Show Actionable Negligence.

Held, that the evidence introduced on behalf of plaintiff, considered in connection with the undisputed and unimpeached evidence produced by defendant, fails to show any actionable negligence on the part of the latter.

Appeal from District Court, Tulsa County; S.J. Clendinning, Judge

Action by Affie Z. McNair, administratrix of the estate of Clabe McNair, deceased, against gypsy Oil Company. Judgment for plaintiff on her first cause of action in the sum of $5,000. Defendant appeals. Reversed and remanded, with directions.

James B. Diggs, William C. Liedtke, Russell G. Lowe, Redmond S. Cole, C.L. Billings, and James B. Diggs, Jr., for plaintiff in error.

B.A. Hamilton and Everett C. Mead, for defendant in error.

PER CURIAM.

¶1 For convenience, we designate the parties as they appeared in the court below, wherein defendant in error, as plaintiff and as administratrix of the estate of her deceased husband, commenced the action by filing her petition on July 22, 1933, claiming damages against defendant by reason of the death of her husband from alleged heatstroke, or sunstroke. Three causes of action are set out in said petition, but, as the verdict and judgment are based entirely on the first cause, wherein damages in the sum of $37,000 are claimed, the second and third causes and the testimony relating exclusively thereto need not be considered.

¶2 In plaintiff's first cause of action, the material averments are that her former husband, Clabe McNair, suffered a heat-stroke, or sunstroke, on July 13, 1932, at about 9 a. m., while in the employ of defendant as an oil well roustabout, and while engaged in tailing casing at one of defendant's wells in the Seminole oil field designated as "Chippy Coker No. 6:" that as a result of said heatstroke or sunstroke, "decedent wholly collapsed, and was thereafter unable by reason of his collapse * * * to help himself in any manner;" that the weather on said date was extremely hot and the place at which decedent was working was low and situated between two exceedingly steep hills which were heavily timbered, and that contiguous thereto were certain sheet iron buildings and other structures, and that by reason of the location of said well "it was impossible for plaintiff's decedent to get air;" that the superintendent or farm boss of defendant, one Maple Taylor, was present at the time of the collapse of said decedent, and that defendant's roustabout foreman, C.C. Rice, and a number of other employees of defendant working with decedent around the aforesaid well were present at said time; that said decedent, though in a helpless condition caused by said stroke, was given no aid or attention of any kind by Maple Taylor, C.C. Rice, or any other of defendant's employees, for approximately three hours, when said Maple Taylor, while acting for and on behalf of defendant, took decedent, in a helpless condition, from said lease to his home, located about 10 miles away, and at the time of delivering decedent to his home and into the care of his wife said Maple Taylor told them "he would go and get a doctor;" that thereafter said Maple Taylor immediately left and both decedent and plaintiff waited for a period of approximately seven hours expecting the arrival of a doctor at any moment, but that none came because of the failure of Taylor to carry out said promise, hence that deceased was without any medical aid of any character for a period of approximately 10 hours following his collapse; that decedent had been in the employ of defendant more than eight years previous to said 13th day of July, 1932, and that an said date, in accordance with the custom of defendant and other oil companies operating in that field, defendant furnished transportation to decedent and other of its employees from their homes, or from a certain designated common point near their homes, to their places of work, and at the end of the work day, from such places of work back to their homes or such common designated point; that, according to the common custom or usage of the oil industry in the state of Oklahoma, it was the duty of defendant to furnish transportation for employees who were stricken while employed under the circumstances attending the collapse of decedent, and that such custom and usage was on said date effective and usually followed by defendant at said time, and had been so for a long time prior thereto, especially in cases where such employees were working in the country where they had no means of obtaining assistance or aid for themselves, and that decedent on said occasion had no means of obtaining for himself such assistance or medical aid; that prior to said stroke decedent was a strong, able-bodied man, and but for the negligence of defendant in failing to furnish first aid and medical attention to him immediately after the stroke, as defendant was required to do both by said custom and by the laws of Oklahoma, decedent would have lived for the period of his life expectancy, which was 31.07 years, he being 36 years of age at that time; that prior to the 13th day of July, 1932, decedent was a strong, able-bodied man earning and capable of earning the sum of $125 per month, and that he contributed to the support of plaintiff and their two minor children approximately the sum of $100 per month.

¶3 Defendant first filed a motion to require plaintiff to make the fifth paragraph of her petition more definite and certain, by stating the character of the medical aid obtained, and by whom furnished, at the expiration of the ten hours following deceased's alleged collapse from heatstroke or sunstroke. This motion was sustained, and in compliance with the trial court's order plaintiff filed an amendment to her petition stating that decedent "sought the services of a physican, one Dr. Morrison of Maud, Okla., but that by reason of the ten-hour period of neglect on the part of defendant * * * said Dr. Morrison was unable to benefit plaintiff's decedent by treatment." Defendant also filed a motion to strike certain matters from plaintiff's petition and a demurrer thereto, both of which were overruled.

¶4 Thereafter defendant answered by general denial and also interposed certain special defenses to plaintiff's second and third causes of action, but, as the verdict and judgment are based exclusively on the first cause of action, said second and third causes and the defenses thereto are now immaterial.

¶5 While the evidence introduced by the respective parties quite voluminous, it is in real conflict only an two material points: First, as to whether or not Maple Taylor, at the time he delivered decedent to his home, stated that he (Taylor) would go and get a doctor; second, as to the condition of decedent's health for several years immediately preceding his alleged stroke on July 13, 1932.

¶6 There is practically no dispute as to the character of the weather and the topographic condition at the place where decedent was working at the time he became sick, and, while there is some divergence in the recollection of the various witnesses, there is no real dispute as to the hour at which this occurred.

¶7 Plaintiff introduced but two witnesses an these points, i. e., T.J. Hendricks and C.C. Rice. The former testified, in substance, that there was not much circulation of air anywhere on that day because it was pretty hot everywhere; that he was working in the derrick about 30 feet up from the derrick floor, running the stabbing board. As to the time at which Mr. McNair became ill and dropped out of his position, this witness says: "Well, I couldn't say positively, but I believe it was somewhere near 10:30. About 9:30 or 10:00 - somewhere about there." That he saw decedent get into the car with Maple Taylor, who was farm boss of the Gypsy Oil Company. As to the elapsed time between decedent's becoming ill and leaving with Taylor, witness could make no definite estimate, saying, "It couldn't have been so powerful long, because we went to work on the well, probably at 7:30 and that was about 9:30 or possibly 10 when he took him away." In explaining the character of the location in which decedent was working, this witness says it was down kinda between the two, between the hill and the ravine, or at the edge of the ravine; that the belt hall and the enginehouse were built of corrugated iron.

¶8 C.C. Rice testified, in substance, that he was roustabout foreman for defendant, and that he, decedent, and other members of a crew were working on the Chippy Coker No. 6 lease on July 13,...