Hudgens v. Cook Industries, Inc., 44765

Decision Date27 November 1973
Docket NumberNo. 44765,44765
PartiesJohn 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.
CourtOklahoma Supreme Court

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 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 ability or equipment.

The testimony of the truck manager for Cook was that Cook did not provide written or oral instructions to him relating to trucker selection. This was left to his discretion. It was his policy, and therefore that of the company, to make no inquiries as to ability, experience, driving record, traffic violations, criminal offenses, equipment, necessary permits, validity of drivers license, liability or cargo insurance. He just 'assumed' everything was in order. It was his assumption that Edwards had the necessary permits and insurance, but no check was ever made to determine if he actually did. Edwards made at least fifty trips for Cook under these assumptions.

The truck manager for Union Equity, who like Cook, was a grain exporter engaged in the purchase of wheat for overseas sale stated that it was the policy of his company to hire no truckers unless they were able to produce a certificate of insurance showing that they possessed both cargo and liability insurance. This requirement was to protect the public and to insure against any loss of cargo, the records maintained by him revealed that Edwards had applied on two occasions to haul wheat for Union Equity, but that he had been rejected on both occasions.

Cook filed a motion for summary judgment. It contended that depositions on file established as a matter of law that Edwards was acting as an independent contractor at the time of the accident, and that Cook had no duty to third persons injured on the highway for negligent acts of independent contractors.

Summary judgment was rendered in favor of Cook. It is from this order that the appeal lies.

Generally, an employer is not liable for the torts of an independent contractor, but there are many exceptions to the rule. The rule in...

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  • Wathor v. Mutual Assur. Adm'rs, Inc., 97,696.
    • United States
    • Supreme Court of Oklahoma
    • January 20, 2004
    ...of the work." (emphasis added). Williamson v. Fowler Toyota, Inc., 1998 OK 14, ¶ 7, 956 P.2d 858, 860, quoting from Hudgens v. Cook Industries, Inc., 1973 OK 145, ¶ 11, 521 P.2d 813, 815. See also, Huckins Hotel Co. v. Clampitt, 1924 OK 142, 101 Okl. 190, 224 P. 945, 946-947, Minnetonka Oil......
  • Doug v. Mutual Assurance Administrators, Inc.
    • United States
    • Supreme Court of Oklahoma
    • January 21, 2003
    ...of the work." (emphasis added). Williamson v. Fowler Toyota, Inc., 1998 OK 14, ¶ 7, 956 P.2d 858, 860, quoting from Hudgens v. Cook Industries, Inc., 1973 OK 145, ¶ 11, 521 P.2d 813, 815. See also, Huckins Hotel Co. v. Clampitt, 1924 OK 142, 101 Okl. 190, 224 P. 945, 946-947, Minnetonka Oil......
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    • Supreme Court of Oklahoma
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    ...this action.21 This is not to say that Airbus or Soloy owed no duty of care toward the pilot or others. In Hudgens v. CookIndustries, Inc. 1973 OK 145, ¶ 18, 521 P.2d 813, the Court said:Where there is foreseeable risk of harm to others unless precautions are taken, it is the duty of one wh......
  • Le v. Total Quality Logistics, LLC, Case No. 116,382
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    • May 16, 2018
    ...negligence of the contractor, excepting special circumstances that would place a duty on the hiring party. Hudgens v. Cook Indus., Inc. , 1973 OK 145, 521 P.2d 813 ; Bouziden v. Alfalfa Elec. Co-op., Inc ., 2000 OK 50, ¶ 12, 16 P.3d 450. Le argued at summary judgment that there is evidence ......
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