Jones v. George F. Getty Oil Co.

• Decision Date: 18 October 1937
• Docket Number: No. 1525.,1525.
• Citation: 92 F.2d 255
• Parties: JONES et al. v. GEORGE F. GETTY OIL CO.
• Court: U.S. Court of Appeals — Tenth Circuit

92 F.2d 255 (1937)

JONES et al. v. GEORGE F. GETTY OIL CO.

No. 1525.

Circuit Court of Appeals, Tenth Circuit.

September 7, 1937.

Rehearing Denied October 18, 1937.

Jarrell Garonzik, of Dallas, Tex. (R. Guy Carter and John Gray, both of Dallas, Tex., and John R. Brand, of Hobbs, N. M., on the brief), for appellants.

Carl H. Gilbert, of Sante Fé, N. M. (M. W. Hamilton, of Sante Fé, N. M., and James W. Stagner and George L. Reese, Jr., both of Carlsbad, N. M., on the brief), for appellee.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Appellant Frank D. Jones commenced this action, as plaintiff, against appellee, Getty Oil Company, as defendant, to recover damages for personal injury. His co-appellant, Associated Indemnity Corporation, having intervened, filed its amended plea in intervention for subrogation.

The parties will be herein referred to as they appeared in the lower court, to wit: Frank D. Jones, as plaintiff; Associated Indemnity Corporation, as intervener; and George F. Getty Oil Company, as defendant.

Plaintiff individually and for use of intervener in his petition declared that about six weeks prior to the occurrence of plaintiff's injury on April 8, 1934, he entered into an oral contract of employment in the State of Texas with E. C. Norwood whereby he agreed and did go to the State of New Mexico to work for Norwood on an oil and gas lease in that state.

Defendant then and there owned, operated, and maintained and controlled a 40-acre tract of oil land upon which it then did and does now maintain numerous oil wells and three water wells, and entered into a contract with the said E. C. Norwood to sell him certain quantities of water for said Norwood's drilling operations. On said date, the three water wells having become out of repair, ceased to pump water, the said Norwood thereby being prevented from continuing such operations in drilling oil wells, no other source for obtaining water for such operation being available. In order to repair said wells so that water could be obtained by Norwood, and his drilling operations resumed, the said E. C. Norwood, acting by and through his agent, servant, and employee, Bill Wood, the foreman in charge of said drilling operations, in the regular scope and course of his employment, ordered and instructed the plaintiff Frank D. Jones and other employees to proceed with him (Bill Wood) upon the premises of defendant and to said water well No. 1, and to perform certain work designated by Bill Wood in the repair of said wells. Such voluntary entry was made upon the premises by Bill Wood and his crew, including plaintiff, with the consent of the defendant, acting by and through its lease superintendent, Allen Stewart, who was in charge of the defendant's premises and acting in the regular scope of his employment for the defendant. Plaintiff came upon said premises at about 6 p. m. on said date, and, pursuant to instructions from the foreman of his employer, E. C. Norwood, and while acting within the regular scope and course of his employment for said employer, and none other, within the meaning of the Employers' Liability Act of the State of Texas, (Rev.St.Tex.1925, art. 8306 et seq., as amended, Vernon's Ann.Civ.St.Tex. art. 8306 et seq.), and the Workmen's Compensation Law of the State of New Mexico (Comp.St.N.M.1929, § 156-101 et seq. as amended) as well as at common law, took the block in question and climbed the gin pole and attached the block to the top thereof, and plaintiff then descended and took the winchline and again climbed the pole for the purpose of feeding said line through the block, in order that the rods might be pulled from the well, and at the time the plaintiff came upon said premises, the gin pole and wires had just been moved and erected and the guy wires had just been tied to the "dead men" and drawn taut by the agents, servants, or employees of the defendant.

"In the performance by the plaintiff of the work above set forth and at all times while he was upon the premises of the defendant and elsewhere at the time and on the occasion in question, he was acting in all things under the direction, supervision, and control of his employer, E. C. Norwood, and none other, and Bill Wood was also so acting, and * * * at no time in the performance of said work nor while he was upon the defendant's premises or elsewhere, was the plaintiff in any manner or as to any matter acting under the direction, supervision or control of the defendant, its agents, servants or employees; nor did plaintiff at any time or in any manner in the performance of said work, or while upon defendant's premises or elsewhere, submit himself to the direction, supervision or control of the defendant, its agents, servants or employees; the defendant, its agents, servants or employees, including B. M. Evans, Allen Stewart and S. A. Burke were not in any way nor in any manner acting under the direction, supervision or control of E. C. Norwood, his agents, servants or employees in the repair of said wells at the time and on the occasion in question; the said Allen Stewart and his crew of men and the said Bill Wood and his crew of men, including the plaintiff, were each acting separately and independently of the other and were furthering the interest of and acting on behalf of their respective employers, George F. Getty Oil Company and E. C. Norwood."

"* * * At the time and on the occasion in question the defendant, its agents, servants or employees, was guilty of negligence which directly and proximately caused the injuries complained of, and the negligent acts of the defendant's servants occurred, while said servants were acting in the regular scope of their employment for the defendant."

Further allegation is that the said E. C. Norwood was eligible to become and was a subscriber under the terms of what is known as the Workmen's Compensation Act of the State of Texas at the time such contract of employment was entered into and at all times thereafter, and that said employer, at the time plaintiff's injuries were sustained, had in his employ more than three employees and that he did not come within any of the exceptions set forth in section 2 of article 8306 of said act, found in the Revised Statutes of Texas for the year 1925; that on the date that said contract of employment was entered into and on the date that plaintiff's injuries were sustained, the said Norwood carried a policy of workmen's compensation insurance with the Associated Indemnity Corporation (intervener), and that after such injuries were sustained plaintiff elected to take compensation pursuant to the terms and provisions of the Workmen's Compensation Act of Texas, and that thereafter the Associated Indemnity Corporation (intervener) agreed, promised, assumed to pay, and did pay, compensation pursuant to the terms and provisions of the Workmen's Compensation Act of Texas in the sum of $3,465; that in addition thereto the Associated Indemnity Corporation (intervener) has paid medical expenses incident to and in connection with the treatment of the plaintiff herein on account of said injuries in the further sum of $67.50, which medical services were necessary, and that such prices charged therefor were reasonable, all of which said sums in the total amount of $3,532.50, the said Associated Indemnity Corporation (intervener) has expended in connection with the compensation claim made by plaintiff against it, for which amount the Associated Indemnity Corporation (intervener) has been finally held liable to the plaintiff herein, and that the claim made by the plaintiff herein against the Associated Indemnity Corporation (intervener) before the Industrial Accident Board of the State of Texas has been finally determined and disposed of.

Intervener in its amended petition claims subrogation in sum of $3,532.50 out of recovery by plaintiff.

The amended complaint is silent as to what arrangements were made between Norwood's representative and his crew on the one side, and the defendant on the other, with respect to the work to be done by Norwood's crew; it merely reciting that such crew came on the property with the defendant's consent.

Immediately after Norwood's crew came on the work, Norwood's foreman directed plaintiff to climb the "gin pole," attach a block to the top thereof, and feed a pulley through the block. Plaintiff was standing near the top of the pole, pursuant to the aforesaid order, when a guy wire broke, allowing the pole to fall, injuring the plaintiff; it being alleged that the guy wire was broken through negligence of certain of defendant's employees.

There is no allegation negativing defendant's power to control the work or allegation that Norwood's crew took charge of the work.

If plaintiff was a temporary employee of defendant, then the latter's sole liability to him is under the New Mexico Compensation Act; no common-law liability having application. The work being done was defendant's work. Norwood's act constituted a loan of his employees to defendant to assist, plaintiff being a temporary employee of defendant. If Norwood's men were mere volunteers, no common-law liability attached. The only duties under such circumstances owing by defendant to plaintiff was not to willfully or wantonly injure him or expose him to hidden peril. 45 C.J. p. 796; p. 788, § 194.

The right of the intervener depends upon the claim of the plaintiff. If the latter has no claim, the intervention necessarily fails.

Allegation of plaintiff's status as a special employee of defendant is lacking, but applicability of the New Mexico Workmen's Compensation Act to plaintiff's status as disclosed by pleadings is apparent. For if plaintiff occupied position of special employee of defendant he was within the scope of the New Mexico Workmen's Compensation Act, and not permitted to maintain an action as under the common law for damages.

The complaint characterized the...