Hudgens v. Cook Industries, Inc., No. 44765

• Court: Supreme Court of Oklahoma
• Writing for the Court: HODGES; DAVISON, C.J., WILLIAMS, V.C.J., and SIMMS and DOOLIN, JJ., and BLISS; BERRY; Justices BARNES having certified his disqualification in this case
• Citation: 521 P.2d 813,1973 OK 145
• Parties: John S. HUDGENS, and Ernest H. Riddle, co-guardians of the person and estate of Mike Davis, a minor, Appellants, v. COOK INDUSTRIES, INC., a foreign corporation, Appellee.
• Docket Number: No. 44765
• Decision Date: 27 November 1973

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521 P.2d 813 78 A.L.R.3d 902 John S. HUDGENS, and Ernest H. Riddle, co-guardians of the
person and estate of Mike Davis, a minor, Appellants,
v.
COOK INDUSTRIES, INC., a foreign corporation, Appellee. No. 44765. Supreme Court of Oklahoma. Nov. 27, 1973.
As Corrected on Denial of Rehearing May 6, 1974.
Rehearing Denied May 7, 1974.

Foliart, Shepherd, Mills & Niemeyer by George W. Dahnke, Oklahoma, City, for appellants.

Rhodes, Hieronymous, Holloway & Wilson by Page Dobson, Oklahoma City, for appellee.

HODGES, Justice.

This action arose when Mike Davis (Davis), the ward of appellants received injuries when the automobile in which he was a passenger collided with a truck being driven by John Lewis Edwards (Edwards). Edwards was hauling wheat owned by Cook Industries, Inc. (Cook).

Appellants urge two theories of liability against Cook: (1) Edwards was acting as the agent, servant, and employee of Cook and within the scope of his employment and (2) Cook was guilty of negligence which caused injury to Davis because Cook hired Edwards to haul its wheat when it knew, or in the exercise of reasonable care should have known, that Edwards was an incompetent and unfit driver who used defective and unsafe equipment. Appellants assert that Cook negligently selected an independent contractor to do work which was inherently dangerous, or which posed an unreasonable risk of bodily harm to the pulic.

Appellants alleged, and uncontroverted deposition evidence revealed, that: Edwards was a reckless driver with a lengthy history of prior arrests and accidents; he consistently and repeatedly hauled loads in excess of the legal weight limits (some violations occurring during his employment by Cook); he was a person with a lengthy history of drinking intoxicating beverages while operating motor vehicles; he had no permit to haul grain in the State of Oklahoma at the time of the accident; he did not comply with safety regulations promulgated by the Federal Highway Administration; his equipment was grossly defective and unsafe for operation upon the public highways.

The deposition testimony by the investigating trooper was that all of the tires on Edwards' trailer and on the driving axle were smooth and threadbare. The inner cord on some of the tires was visible. The axles had been re-welded after a prior break. The speedometer was inoperable and the brakes defective to the extent that some of the brake bands were worn completely

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through. The springs on the left hand side of the trailer had been removed. The trooper testified that the tractor-trailer was in such poor condition that it would have been unsafe to drive even when unloaded. The trooper also testified that his investigation disclosed that Edwards had consumed a couple of beers within three hours of the accident in a Geary tavern located twelve miles from the scene of the accident. However, it was his opinion that Edwards was not intoxicated nor driving under the influence at the time of the accident. Intoxication is not an issue. It was the trooper's opinion that the combination of excessive speed, slickness of the trailer tires resulting in lack of traction, and the wet highway caused Edwards' trailer to fail to follow the tractor as it negotiated the curve, causing the left rear of the trailer to slide across the center line and to collide with the oncoming vehicle in which Davis was a passenger.

Other evidence disclosed that the truck was 13,000 pounds overweight at the time of the accident. An expert witness for appellants testified that in his opinion this was a causal factor in contributing to the accident.

It was Edwards' testimony that Cook did no require him to fill out an application to haul nor did they make any inquiry concerning his...