Haynes Drilling Corporation v. Smith

• Decision Date: 01 July 1940
• Docket Number: 4-5986
• Parties: HAYNES DRILLING CORPORATION v. SMITH
• Court: Arkansas Supreme Court

143 S.W.2d 27

200 Ark. 1098

HAYNES DRILLING CORPORATION v. SMITH

4-5986

Supreme Court of Arkansas

July 1, 1940

Appeal from Miller Circuit Court; Dexter Bush, Judge; affirmed if remittitur is entered.

Affirmed otherwise reversed and remanded.

Atchley & Vance and Arnold & Arnold, for appellant.

Burford & Sanderson and Shaver, Shaver & Williams, for appellee.

OPINION

MEHAFFY, J.

On February 9, 1939, the appellee filed suit for personal injuries against the appellant, alleging that the appellant was a foreign corporation engaged in drilling oil and gas wells; that on September 12, 1937, appellee was employed as a driller's helper, working on a well which was being drilled near Buckner, Columbia county, Arkansas, under the supervision and direction of J. E. Senter, who was in charge of said work for appellant; that while so engaged he was using certain tongs fixed around the drill pipe immediately above the slips and below the tool joints, which tongs extended about three and a half feet from the pipe; the drill pipe being lowered in the well was about 2,500 feet in length and weighed 40,000 pounds, and was being held by and lowered through pipe slips; that said pipe slips were old, worn and defective, so that they would not and did not hold the weight of said drill stem; that he did not know that the slips were worn and defective that said Senter advised him that new slips were being sent to replace the old ones and assured him that the old slips were sufficient and safe; that appellee, relying upon the superior knowledge, skill and authority of Senter, proceeded in the performance of his duties; that after two or three joints of pipe had been lowered into the well, the slips suddenly and without warning gave way and failed to hold allowing the drill stem to fall into the well with great weight and force, carrying the tongs attached and extended from the pipe, striking the appellee's foot with great force and violence, severely crushing and mangling his left foot and ankle to his permanent injury and damage; that said injuries and damage were caused by the carelessness and negligence of appellant in that appellant failed to furnish appellee a reasonably safe place in which to work and safe tools and appliances, and carelessly and negligently ordered appellee to proceed with the drilling operations when it knew, or could have known, that said slips and equipment were worn, old, defective and unsafe; that appellant was careless and negligent in requiring appellee to work in and about said drilling operations when it knew, or could have known, that said slips would not hold the weight placed thereon; that said acts of negligence were the proximate cause of appellee's injuries and damages; that appellee's foot was severely and horribly crushed, mangled and permanently injured, causing continuous pain and suffering; that said injuries are of a serious and permanent nature, causing appellee physical and mental pain and suffering, diminishing his earning capacity and capacity to work. Appellee alleged that at the time of his injuries he was a young man thirty-one years old with a life expectancy of thirty-five years; that he was receiving $ 48 per week for his work. The prayer was for damages against appellant in the sum of $ 30,000.

Appellant filed answer denying all the material allegations in the complaint and alleged that the machinery was in good condition and that appellee knew that it was a common and ordinary occurrence for new pipe slips in good condition to allow a string of new drill pipe to settle into the hole; that notwithstanding such knowledge, he put himself in a position of danger; that his knowledge was equal to or greater than that of any of appellant's agents and that he voluntarily exposed himself to said danger and assumed the risk; that he was guilty of contributory negligence; that appellant is a Louisiana corporation and the bulk of its business is transacted in Louisiana, but that it had contracts to drill in Arkansas; that appellant subscribed to the Workmen's Compensation Law of Louisiana and had effected a contract of compensation insurance and that appellee was covered under said policy at the time of his injury; that the Workmen's Compensation Law is and was extra-territorial in effect and covered appellant's operations and A. M. Smith at the time of his injury in Arkansas; that the compensation statute made compensation to be paid thereunder the sole and exclusive remedy for all injuries suffered by all employees in the course of their employment while covered by workmen's compensation insurance; that appellee had received from appellant's compensation carrier weekly payments under the law for 62 weeks at $ 20 a week, a total of $ 1,240 plus medical expenses incurred, and that said payments were received voluntarily by appellee. Appellant further alleged that if it should be mistaken as to its affirmative defenses, it was entitled to credit for all sums paid under the compensation law; that said payments were voluntarily received with the full knowledge of appellee that the same were paid under and pursuant to the compensation law; that by electing to take payments under the compensation law, appellee waived his right to pursue an action at common law for damages.

There was a verdict and judgment in favor of the appellee for $ 13,760. The judgment was for $ 15,000, less the amount that had already been paid appellee, which was $ 1,240. Motion for new trial was filed and overruled, and the case is here on appeal.

The first contention of the appellant is that the court erred in refusing to direct a verdict in favor of appellant because, it says, the undisputed testimony shows that appellee assumed the risk of the danger. It calls attention to the case of Mid-Continent Quicksilver Co. v. Ashbrook, 194 Ark. 744, 109 S.W.2d 448. The court in that case said, among other things after quoting the testimony for appellee: "Plaintiff further testified that when Mr. Yount was not there he was the foreman; in fact, he was the foreman all of the time and the other boys took orders from him.

"The foregoing statements are conclusive of another fact, that is that Ashbrook and Pierce did not rely upon the statements made by Mr. Yount in which he expressed a belief that the rock would not fall; but they deemed it unwise to work near it in the condition in which they found it, and relying upon their own judgment, began efforts for the removal of the rock. Mr. Yount was not present, ordering and directing the work to be done, but Mr. Ashbrook, as foreman, had control of the men assisting him in the removal of the large stone."

It, therefore, appears that the injured party in that case was himself the foreman, and also appears that he did not rely on any statement or promise of the foreman.

In the instant case the appellee testified that J. E. Senter was the driller on the day shift, and that Senter directed appellee and Burrows to clean up the slips. Senter told appellee: "Let's clean up the slips and run pipe in the hole until those other slips get here." The appellee also testified that, to do this work directed by the foreman, he was required to put his leg in a position so as to hold the tongs; that the slips gave way and the string of drill stem pipe fell, and his toe was caught between the tong handle and the rotary floor; that Senter instructed the crew to clean up the slips. Appellee was hired by Senter and received the sum of $ 7 a day for his work.

Senter testified that he went down that morning and did some work and that he had been informed that new slips had been sent for and he did not begin the work until ten or ten-thirty because the slips were dull and witness thought he would wait a while and get some new ones. He testified that the slips had been ordered and were on the way; that he was in charge of the drilling operations and directed his men how to perform their work, and what work to do. Witness had been working as a driller since 1928; that it was his judgment that the slips were all right and would hold, and if he had not thought so he would not have used them.

The undisputed evidence, therefore, shows that Mr. Senter was the foreman, was in charge of the work, and that he directed the men, including appellee, how to perform their work and what work to do. It is true that when one enters the employ of another he assumes all the usual risks and hazards of the employment, but he does not assume any hazard that is the result of the master's negligence, or the result of the...