Ice v. Gardner

• Decision Date: 11 October 1938
• Docket Number: Case Number: 28212
• Citation: 83 P.2d 378,1938 OK 502,183 Okla. 496
• Court: Oklahoma Supreme Court
• Parties: ICE et al. v. GARDNER.

1938 OK 502

83 P.2d 378

183 Okla. 496

ICE et al. v. GARDNER.

Case Number: 28212

Supreme Court of Oklahoma

Decided: October 11, 1938

Syllabus

¶0 1. WORKMEN'S COMPENSATION - Roustabout Employed in Oil Fields Ordinarily Protected by Workmen's Compensation Act.

A "roustabout," being a laborer who is a general handy man in the oil fields and is subject to any kind of duty therein involving manual labor, is ordinarily protected by the Workmen's Compensation Act, since such work is manual or mechanical and is connected with, or incident to, the drilling or operation of oil or gas wells, an industry defined as hazardous by the Workmen's Compensation Act. (Sections 13349 and 13350, O. S. 1931, 85 Okla. St. Ann., secs. 2, 3.)

2. SAME - Workmen Protected by Act However Brief the Employment.

The protection of the Workmen's Compensation Act extends to all workmen engaged in hazardous occupations in the employments described, however brief the employment, provided there is in fact an employment.

3. SAME - Court Action by Injured Employee Against Employer Who Has Failed to Provide Workmen's Compensation Insurance - Burden of Proof on Plaintiff.

Where employer has failed to provide workmen's compensation insurance, and an injured employee has filed an action in a court of law under sections 13352, O. S. 1931, 85 Okla. St. Ann. sec. 12, the plaintiff must prove: (1) Facts bringing him within the Workmen's Compensation Act; (2) that employer failed to provide said insurance: (3) the injury and damage; (4) negligence of the employer; (5) proximate cause or causal connection between the negligence and the injury.

4. SAME - Defenses not Available to Defendant.

Where employer has failed to provide workmen's compensation insurance, and an injured employee files an action in court under section 13352. O. S. 1931, 85 Okla. St. Ann. sec. 12, the defendant may not plead or prove the defenses of contributory negligence, assumption of risk, or fellow servant doctrine.

5. AUTOMOBILES - Question for Jury Whether Driver Negligent in Permitting Objects in Load to Project Beyond Width of Vehicle.

Whether the driver of a vehicle is negligent in permitting objects being transported to project dangerously beyond the width of the vehicle or load, in the absence of an applicable statute or ordinance, is ordinarily a question for the jury.

6. NEGLIGENCE - Scope of Responsibility for Negligence.

A person guilty of negligence involving a breach of his duty should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the facts and circumstances which in fact exist, whether they could have been ascertained by reasonable diligence or not, would have thought of at the time of the negligent act as reasonably possible to follow, if they had been suggested to his mind. (Butts v. Anthis, 181 Okla. 276, 73 P.2d 843.)

7. DAMAGES - Verdict of $6,000 for Injuries to 30-Year-Old Laborer Resulting in Total Permanent Disability Held not Excessive.

Six thousand dollars held not excessive verdict where evidence was sufficient to establish that 30-year-old workman earning $2.50 per day was knocked unconscious by iron pipe, sustained serious brain injury and considerable pain and suffering and was totally and permanently disabled to do manual labor.

Appeal from District Court, Creek County; A.B. Cochran, Judge.

Personal injury damage action under special Act, provisions of the Workmen's Compensation Act, by Marion Gardner against A.B. Ice and another. Judgment for plaintiff. Defendants appeal. Affirmed.

Gaylord R. Wilcox, for plaintiffs in error.

Heber Finch and Speakman & Speakman, for defendant in error.

PHELPS, J.

¶1 The plaintiff recovered a verdict and judgment against his employers for personal injuries sustained on account of the negligence of a fellow employee while the two employees were moving a pipe line on premises being operated by the defendants under an oil and gas lease, and the defendants appeal.

¶2 The defendants did not carry workmen's compensation insurance and the plaintiff therefore elected to prosecute his claim in the district court under the provisions of section 13352, O. S. 1931, 85 Okla. St. Ann. sec. 12, instead of filing it in the State Industrial Commission. That section deprives the employer of the defenses of assumption of risk, contributory negligence, and the fellow servant doctrine. Obviously, if the employment or the circumstances producing the injury were not such as to bring the case within the Workmen's Compensation Act, the right of the defendants to plead and prove the above defenses should be enforced, and the plaintiff would be compelled to withstand such defenses as in the ordinary negligence action for personal injuries.

¶3 The case having been tried and submitted to the jury under the provisions of the above section, the defendants contend that the plaintiff was not engaged in hazardous employment coming under the operation of the Workmen's Compensation Act.

¶4 The defendants own and operate the oil and gas lease on which plaintiff was injured. There are several oil wells on it, which have been producing small amounts of oil for the past ten years. A pumping station is located thereon, which supplies power to the pumps at the various wells, to raise the oil and pump it on its way. For some reason not made clear by the record, it was or had been necessary to have pipe lines for the conveyance of water, either to the power plant or between it and the wells. 'Said pipe line was incident to the operation of the power plant or pumping plant, and physically connected with it. The following is from defendants' testimony: "We had to have a water line for the different lines from the power, and I don't know, exactly - I don't remember the exact date, but we needed quite a lot of line for the changing of the lines up to the power lines. * * *" While said testimony is not as definite as it could have been as to the exact purpose and functioning of the water line, it appears beyond doubt that a water line was necessary to the proper operation of the wells and the power plant.

¶5 The plaintiff was a "roustabout," a term used to designate a laborer who is a general handy man in the oil fields, subject to any kind of duty involving manual labor. He and his fellow employee, Romine, had been assigned by the defendants' superintendent to take up the pipe line in question and transport it to another lease, which was also owned by the defendants, and situated some miles distant from the lease in question. The two of them had unearthed the line, and disconnected it at its joints. On the day of the injury they were going along the line with a truck, Romine driving, and loading the joints into the truck preparatory to hauling them to the other lease, Just a few days prior to the injury plaintiff had worked with other men on the power plant itself.

¶6 Section 13349, O. S. 1931, 85 Okla. St. Ann. sec. 2, describes the hazardous employments, or "businesses" covered by the act. A great number of such employments are there listed. Among them appears simply the word "wells," and same has repeatedly been construed by this court as including oil wells. The statute does not describe or limit the nature or kind of work in connection with wells (except that by the succeeding section it must be manual or mechanical work), and so we have held that a workman engaged in firing boilers used in connection with the drilling of a well is protected by the act. Oklahoma Company et al. v. State Industrial Commission, 149 Okla. 18, 298 P. 1051. If firing boilers used in connection with the drilling of a well is covered by the act, then it is difficult to perceive why working with a water line or any other instrumentality directly connected with the operation of a well, after it has been drilled, is not equally within the act. While the exact employment now before us has not heretofore expressly been passed upon in this state, it has indirectly, and generally it has been recognized that the work of a roustabout in the oil fields is protected. In Robinson et al. v. State Industrial Commission, 176 Okla. 619, 56 P.2d 826, 827, it was said that

"The claimant, a man 39 years old, was working for the respondent E.L. Robinson as a roustabout and pumper on a lease near Okemah, Okla., on April 2, 1930. His occupation was admittedly hazardous within the meaning of that term as used in the Workmen's Compensation Act."

¶7 See, also, Skelly Oil Co. v. Rose, 176 Okla. 313, 55 P.2d 1019; Oklahoma Natural Gas Co. v. Davis, 181 Okla. 530, 75 P.2d 435.

¶8 Section 13350, O. S. 1931, 85 Okla. St. Ann. sec. 3, with certain exceptions not presently involved, provides that "hazardous employment" shall mean manual or mechanical work or labor connected with or incident to one of the industries, plants, factories, lines, occupations, or trades mentioned in the section which we have just been considering. Clearly the plaintiff was engaged in manual or mechanical work or labor, and it is equally apparent that such labor was "connected with or incident to" the operation of "wells," for there was no reason or purpose for having plaintiff work at all except to the end that mechanically the wells function properly and profitably. We believe that both by the letter and spirit of the Workmen's Compensation Act the type of the employment and the nature of plaintiff's duties were intended to be covered by the act. See 2d syllabus by the court in Wilson & Co. v. Musgrave, 180 Okla. 246, 68 P.2d 846.

¶9 The defendants also contend that the work did not come within the Workmen's Compensation Act for want of sufficient employees. Section 13351, O. S. 1931, 85 Okla. St Ann. sec. 11, prescribes that the provisions of the act shall not apply to any employer if he employs less than two workmen. The evidence reveals that aside from plaintiff and his fellow employee, Romine, the defendants employed a pumper at the power house, who acted as a sort of...