Kaw Boiler Works v. Frymyer
| Decision Date | 22 April 1924 |
| Docket Number | 13109. |
| Citation | 227 P. 453,100 Okla. 81,1924 OK 469 |
| Parties | KAW BOILER WORKS v. FRYMYER ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 24, 1924.
Syllabus by the Court.
Section 5442, Compiled Statutes of 1921, providing for constructive service in cases against foreign corporations engaged in business in this state, contains ample provisions reasonably calculated to bring knowledge of the action to the notice of the defendant, as required in the application of the rules of due process of law.
The provision of section 5442, supra, applies to actions following from business transactions of foreign corporations in the state, instituted after the corporation discontinues its business, and departs from the state. If the corporation does not appoint an agent for service, the secretary of state continues as service agent for process in such actions, as fully as if the corporation was then engaged in business in the state.
The return of service on the secretary of state is good, unless it is made to appear in the action by the defendant, or otherwise, that the corporation has appointed an agent as provided by law on whom process can be served.
One of the tests for determining whether the contract of employment creates the relation of independent contractor, or that of principal and agent, is whether the employer retained or has the right to control the mode or manner in which the work is to be done.
The employer is liable for injuries to the employés of the independent contractor, engaged in work on the premises of the former, if the injury suffered is the result of the ordinary and usual manner of doing such work.
If the employer of the independent contractor furnishes to the latter reasonably safe premises, as measured by the usual manner of doing the work, the employer is not liable to the servants of the contractor for injury. If, under such conditions, injury results to the employés, it will be deemed the negligence of the contractor.
If the employer negligently permits a change in the conditions of his premises, which subjects the employés of the contractor to injury in the usual course of doing the work, he will be liable.
If the contractor had notice of the changed conditions prior to the accident, or could have discovered the threatened dangers to his employés by the exercise of ordinary care, in time to have avoided the injury, then he will be liable.
The burden is on the plaintiff to prove by a fair preponderance of the evidence acts of negligence by the defendant having a causal effect in producing or contributing to the happening of the accident, which results in the injury suffered by the plaintiff. The causal effect may be shown by circumstantial evidence of existing conditions, which are reasonably calculated to contribute to or result in the accident.
If the action of plaintiff against two defendants is several, the acquittal of one of the defendants by trial does not discharge the other defendant.
In an action by the father for the wrongful death of his adult son the measure of damages is the pecuniary loss suffered by the plaintiff. The loss is determined by the sums of money and the acts and services of a pecuniary value which the son would likely have contributed to the aid and support of the parent during the lifetime of the latter except for the wrongful death. In arriving at the loss, the physical condition, the age, and financial condition of the plaintiff should be taken into consideration.
It was error for the court to exclude evidence from the jury of the financial condition of the father.
It was error in this case for the court to permit witnesses to testify that the manner in which the condenser box as constructed made it dangerous to the employés of the defendant. The witnesses should have described the condition of the box as it existed. It was then for the jury to find from the evidence if there was any negligence in this respect and who was responsible.
It is error for the court, in an action for damages, to permit the plaintiff to show changes and repairs made by the defendant of the machinery and premises involved, after the accident occurred.
Record examined; held, to be insufficient to support judgment against the Kaw Boiler Works; further held that, as plaintiff did not file a cross-appeal from the judgment in favor of the Chickasaw Refining Company it became final.
Commissioners' Opinion, Division No. 4.
Appeal from District Court, Carter County; B. C. Logsdon, Judge.
Action by John L. Frymyer and others against the Kaw Boiler Works and the Chickasaw Refining Company. From a judgment for plaintiff, and for defendant Chickasaw Refining Company, the defendant Kaw Boiler Works appeals. Affirmed in part and reversed in part.
If the action of plaintiff against two defendants is several, the acquittal of one of the defendants does not discharge the other.
Twyford & Smith and Leo G. Mann, all of Oklahoma City, and Samuel A Harper, of Chicago, Ill., for plaintiff in error.
Moore & West, of Ardmore, for defendant in error Frymyer.
The plaintiff prosecutes this action as the next of kin of Burwell Frymyer, deceased, against the Kaw Boiler Works, a corporation, and the Chickasaw Refining Company, a corporation, for the alleged wrongful death of his son. The son was about the age of 21 years at the time of his death. The Kaw Boiler Works is a foreign corporation, and was engaged in the construction of a condenser box as an independent contractor for the Chickasaw Refining Company, at Ardmore, Okl. Plaintiff's son was an employé of the Kaw Boiler Works and assisting in the construction of the condenser at the time of his death, which resulted from a fire near the tank. In the trial of the cause judgment went for the plaintiff and against the Kaw Boiler Works. The Chickasaw Refining Company recovered judgment in the trial. The Kaw Boiler Works has appealed the cause to this court, and assigns various proceedings had in the trial court as error for reversal: (1) Error in assuming jurisdiction of the action. (2) Error in overruling the motion of defendant to quash the summons and its return. (3) Error in overruling defendant's demurrer to plaintiff's amended petition. (4) Error in refusing to direct a verdict in favor of the defendant. (5) Error in admitting certain incompetent evidence and in refusing competent evidence offered by the defendant.
Summons in this cause for the Kaw Boiler Works was served on the secretary of state. The defendant contends that section 5442, Compiled Statute of 1921, is invalid and insufficient to support the service of summons in this case, as the secretary of state was not required to bring notice of the action to the defendant. The validity of this section was before the court in the case of Title Guaranty & Surety Co. v. Slinker, 42 Okl. 811, 143 P. 41. The court held the section to be valid for the purposes for which it was enacted. The defendant states that the statute was attacked in the Slinker Case on the ground that the state was without authority to designate one of its officers as service agent for foreign corporations and not on the ground herein presented. The defendant says that the authorities holding a similar statute invalid were not called to the attention of the court in the first appeal. The defendant does not question the right of the Legislature to make provisions for constructive service on foreign corporations engaged in business pursuits in the state. The right of the state to designate the secretary of state as service agent for such corporations, if the latter do not name their own service agents, is not questioned. In substance, it is the contention of the defendant that the statute does not make reasonable provision for notice of a suit to be brought to the attention of the defendant. For the reason given, the defendant says the statute denies to foreign corporations due process of law in the trial of causes in our jurisdiction, and for that reason is null and void. As proof of the existing vice in the statute, it is said by the defendant, by its provisions, a judgment may go against the defendant without knowledge of the suit coming to its attention, and that it was by mere chance notice of the instant case was received by the defendant. While this may be true, it does not necessarily destroy the act. So long as the Legislature makes provisions for constructive service in actions in personam. under carefully drawn acts, occasional judicial loss of property may be suffered by the adverse party without notice of the action. However, the state may rightfully provide for constructive service on resident defendants and foreign corporations engaged in business in the state in actions in personam. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Barkman v. Hopkins, 11 Ark. 157; Betancourt v. Eberlin, 71 Ala. 461; Bickerdike v. Allen, 157 Ill. 95, 41 N.E. 740, 29 L. R. A. 782; Harrymon v. Roberts, 52 Md. 65. The Supreme Court of the United States prescribes the following standard for testing the sufficiency of a legislative act providing for constructive service on the defendant in the state, where the action is instituted:
"The criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals." American Land Co. v. Zeiss, 219 U.S. 67, 31 S.Ct. 207, 55 L.Ed. 82.
If the legislative act providing for constructive service embodies provisions reasonably calculated to bring notice of the suit to the attention of the defendant in time to answer the complaint before the day of default, it will be deemed valid. If the provisions for bringing notice of the suit to the attention of the...
To continue reading
Request your trial