Hane v. Mid-Continent Petroleum Corporation

• Decision Date: 09 February 1931
• Docket Number: No. 1181.,1181.
• Citation: 47 F.2d 244
• Parties: HANE v. MID-CONTINENT PETROLEUM CORPORATION et al.
• Court: U.S. District Court — Northern District of Oklahoma

47 F.2d 244 (1931)

HANE v. MID-CONTINENT PETROLEUM CORPORATION et al.

No. 1181.

District Court, N. D. Oklahoma.

February 9, 1931.

Holly Anderson, B. A. Hamilton and E. J. Doerner, all of Tulsa, Okl., for plaintiff.

J. C. Denton, R. H. Wills, J. H. Crocker, I. L. Lockewitz, and J. P. Greve, all of Tulsa, Okl., for defendants.

KENNAMER, District Judge.

This is an action for damages for wrongful death. The plaintiff is a resident of the state of Oklahoma; the defendant corporation, it is alleged, is a resident of the state of Delaware, and there are three individual defendants, alleged to be residents of Oklahoma. The case was removed to this court from the District Court of Tulsa county, Okl., upon the petition of the nonresident corporate defendant. A motion to remand the cause to the state court is before the court for determination.

An action by the same plaintiff, against the corporate defendant and the individual defendant, Smith, was instituted some time ago. It was removed to this court, and, upon denial of the plaintiff's motion to remand the cause to the state district court, plaintiff took a nonsuit, and subsequently instituted this action. See 43 F.(2d) 406. In the reported case, the allegations of the petition are set forth, and, with the exception of additional allegations, which will be referred to herein, the petition in this cause is identical.

Plaintiff in this action alleges, in addition to the allegations in the reported case, that J. E. Prichard did all of the things charged to Smith, and further that Smith and Prichard were in complete and absolute control as employees of the Mid-Continent Petroleum Corporation, of the gas engine and pump, with authority to construct, reconstruct, and change it, and that, by reason of their authority, they removed certain boards from the building housing the engine, as well as built the building so near the gas engine as to make it unsafe; that snow and ice covered the ground around the unguarded and unprotected gas engine and pump, and that Smith and Prichard permitted the deceased to be employed about the gas engine and pump without warning him of the dangerous condition. It was alleged that the defendant Forrest was a fellow servant and a coemployee, and that he, knowing the unsafe conditions, failed to advise or warn the deceased of the condition, but caused him to walk into the house while the gas engine and pump were in motion, and that he failed to stop the engine while the deceased was in the engine house and around the engine.

The corporate defendant is charged with negligence in failing to furnish the deceased a safe place in which to work, as well as being charged as the employer of the individual defendants and the deceased.

It is to be observed that plaintiff has attempted to plead a cause of action against the individual defendants, but does not charge them with any misfeasance. Unless they are liable under the Factory Act of Oklahoma (Comp. St. 1921, § 7229), the petition does not state a cause of action against them, as acts of nonfeasance, or omissions, only are charged. Such allegations do not render them liable to plaintiff, unless the Factory Act is applicable. It must be noted that it is not alleged by plaintiff that the removal of boards from the building housing the gas engine and pump were done at the time, or during the time, of the alleged injury, or that any affirmative act was done by the individual defendants which contributed to the injury.

The Factory Act was considered at length in the case filed prior to this action, and which is referred to above. An obvious attempt has been made by the plaintiff to plead a case under the Factory Act, and to set forth allegations taking this action outside the rulings made before. It is specifically alleged in this action that the deceased as well as the individual defendants were employees of the corporate defendant at the time of the alleged injury, and that the corporate defendant was the owner of the lease, engine, and pump. The Factory Act renders liable only the owner or person in charge, and, as pointed out in the opinion referred to above, does not impose liability upon both the owner and person in charge. The statute speaks in the disjunctive, rather than in the conjunctive, and, as construed, renders liable the owner, unless the person in charge is a lessee or an independent contractor, as distinguished from an employee having charge of the operations, even with authority to alter or change the engine. Plaintiff's petition falls far short of allegations imposing liability upon Smith and Prichard as lessees or contractors, but merely charges that they were employees of the corporate defendant, having authority to construct or change the engine and pump. It is therefore apparent that no cause of action is pleaded against these defendants, as they are not liable under the Factory Act, and are not liable to a coemployee for acts of omission or nonfeasance. See Morefield v. Ozark Pipe Line Corp. (D. C.) 27 F.(2d) 890.

No cause of action is alleged against the defendant...