Kelley v. Summers

• Citation: 210 F.2d 665
• Decision Date: 05 April 1954
• Docket Number: No. 4643-4646.,4643-4646.
• Parties: KELLEY v. SUMMERS et al. PACIFIC EMPLOYERS INS. CO. v. KELLEY et al. (two cases). KELLEY v. MARTIN et al.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

210 F.2d 665 (1954)

KELLEY v. SUMMERS et al.

PACIFIC EMPLOYERS INS. CO. v. KELLEY et al. (two cases).

KELLEY v. MARTIN et al.

Nos. 4643-4646.

United States Court of Appeals, Tenth Circuit.

February 23, 1954.

Rehearing Denied April 5, 1954.

COPYRIGHT MATERIAL OMITTED

Roy C. Davis and Robert Y. Jones, Hutchinson, Kan. (Frank S. Hodge, Eugene A. White and H. Newlin Reynolds, Hutchinson, Kan., on the brief), for C. W. Kelley.

William Tinker, Wichita, Kan. (Getto McDonald, Arthur W. Skaer, Hugh P. Quinn and William Porter, Wichita, Kan., on the brief), for Pacific Employers Ins. Co. and Ruby Joyce Summers.

William Tinker, Wichita, Kan. (John J. Watts and Warren Burnett, Odessa, Tex., on the brief), for M. C. Martin.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

For convenience, E. L. Farmer & Company will be hereinafter referred to as Farmer; Clyde Sawyer, assistant manager of Farmer, as Sawyer; James E. Jones, now deceased, as Jones; Ruby Joyce Jones, now Ruby Joyce Summers, as the widow of Jones; M. C. Martin as Martin; Pacific Employers Insurance Company as the insurance company; C. W. Kelley, doing business under the trade name of C. W. Kelley Transport, as Kelley; and Wray Kelley as Wray.

Farmer was engaged in the trucking business at Odessa, Texas; and among other things, it transported oil-well pipe for hire. Farmer was a subscriber to the Workmen's Compensation Act of Texas, Vernon's Ann.Civ.St. art. 8306, and the insurance company was its insurance carrier under the Act. Jones and Martin were in the employ of Farmer as truck drivers. A pipe and supply company in Texas made arrangements with Farmer to transport to Odessa certain used pipe then lying on the ground near Burrton, Kansas. For that purpose, Farmer sent to Kansas eight trucks and truck drivers, including Jones and Martin. Sawyer accompanied the group in an automobile. Kelley was engaged at Hutchinson, Kansas, in the business of trucking and transporting machinery, oil field equipment, and petroleum products; and his employees were under the Workmen's Compensation Act of Kansas. G.S.1949, 44-501 et seq. Wray was a regular employee of Kelley, and he was a qualified operator of caterpillar tractors and booms. Upon arriving in Kansas, Sawyer went to Kelley's place of business and made known to Wray his desire to secure suitable equipment and an operator for use in loading the pipe on the trucks. Wray showed Sawyer a caterpillar tractor and boom and it was agreed between them that such equipment would be used; that Wray would be the operator; and that the rental for the equipment and operator would be $8.50 per hour. The boom was approximately eighteen feet long. Two cables extended from drums or attachments near the operator's position over pulleys at the end of the boom. When Wray and the equipment arrived at the location, Sawyer told him and the truck drivers that the loading operations would begin at the north end of the field and follow the line of pipe to the south. The general plan of operation was that the drivers of two of the trucks not being loaded walked along, carried the ends of the cables attached to hooks, and inserted the hooks in the ends of the pipe. When the hooks had been inserted in the ends of the pipe and the truck being loaded was in position, the pipe was elevated by means of the boom being operated by Wray and placed on the truck. The truck drivers carrying the ends of the cables and inserting the hooks in the ends of the pipe also held the rope fastened to the hooks and guided the pipe being elevated to position on the truck, and then they took out the hooks when the pipe was loaded. If a piece of pipe was not to be picked up, they motioned Wray forward with the tractor and boom. And they gave signals for more slack when it was needed. As each piece of pipe was loaded, the tractor and boom, the truck being loaded, and the men engaged in the loading moved on to the next piece and the operation was repeated. Operations began in the afternoon. After two trucks had been loaded, Sawyer told Wray and the truck drivers to quit for the day and that loading operations would be resumed the following morning. On the following morning, Jones and Martin were carrying the cables and inserting the hooks in the pipe. As the tractor and boom were being moved from the location of one piece of pipe to that of the next, the boom came into contact with the high tension electric line. Jones suffered a shock from which he died and Martin sustained personal injuries. Sawyer was not present at the time of the accident but he arrived soon afterwards and remained there until the loading of the trucks was completed. Pursuant to proceedings had in Texas about which there is no present controversy, the insurance company paid or obligated itself to pay to the widow of Jones for herself and her minor children an aggregate amount of $8,427.50 as death benefits to the dependents of Jones; and pursuant to like proceedings about which there is no controversy, the insurance company paid or obligated itself to pay to Martin an aggregate sum of $933.00.

The widow of Jones, acting in her own behalf and in behalf of the two minor children of herself and Jones, instituted in the United States Court for Kansas an action against Kelley to recover damages for the death of Jones. Jurisdiction was predicated upon diversity of citizenship with the requisite amount in controversy. Negligence on the part of Wray in the operation of the tractor and boom was pleaded as the proximate cause of the accident and resulting death. Martin instituted in the same court a similar action against Kelley seeking damages for his injuries. With leave of the court, the insurance company intervened in each case asserting its right of subrogation and seeking to recover as against Kelley the amount of its payments, such recovery to be out of any damages awarded to plaintiff. After the complaint in intervention had been filed in each case, Kelley filed an amended answer to the complaint of plaintiff and an answer to the complaint in intervention. In such pleading, Kelley denied negligence on his part; pleaded that the sole rights of the widow and surviving children of Jones, and of Martin, were under the Workmen's Compensation Act of Texas; pleaded that Wray was a loaned employee and therefore a servant of Farmer; pleaded that since Jones, Martin, and Wray were employees of Farmer, they were fellow servants; pleaded that Jones and Martin assumed the risk of negligence, if any, on the part of their fellow servant, Wray; pleaded that negligence on the part of Jones and Martin was the proximate cause of the accident with resulting death and injury; and pleaded that Jones and Martin had knowledge of the dangers of the employment and assumed the risk inhering therein. The cases were consolidated for purposes of trial. On the day before the trial to the jury began, the insurance company moved to withdraw and dismiss without prejudice the two complaints in intervention; and the motion was sustained.

The jury returned a verdict in favor of the widow of Jones in the sum of $15,000, and a verdict in favor of Martin in the sum of $18,200. In response to special interrogatories, the jury found that immediately prior to the time the boom came into contact with the electric power line, the line was clearly observable to Wray, to Jones, and to Martin; that neither of such persons saw the electric line prior to the time the boom came into contact with it; that no person connected with the loading of the pipe warned Wray of the presence of the high tension wire or of the danger of the boom coming into contact with it; that Jones had an opportunity at least equal to that of Wray to observe the overhead wire or of the dangerous situation in time to avoid the accident; that Martin did not have an opportunity at least equal to that of Wray to observe such overhead wire or the dangerous situation in time to avoid the accident, but the court disapproved that particular finding; that negligence on the part of Wray in failing to observe properly all obstructions in the path of the tractor and boom was the proximate cause of the accident; and that Jones and Martin were not guilty of contributory negligence. After the return of the verdicts and findings but before entry of judgment, the insurance company, without obtaining leave of court, again filed in each case a motion to intervene, attaching thereto a complaint in intervention in substantially the same language as the previous one. The court determined that in its judgment the verdict in favor of Martin was excessive and that unless a remittitur was filed reducing the amount to $9,000 a new trial would be granted; and the remittitur was filed. The judgment, entered after the filing of the remittitur, provided that the motions of the insurance company to intervene the second time be denied; that the widow of Jones recover from Kelley the sum of $6,572.50, representing the amount of the verdict in her favor less the aggregate amount of workmen's compensation paid her; and that Martin recover from Kelley the sum of $8,067.00, representing the amount of the verdict in his favor as reduced by the remittitur, less the amount of workmen's compensation paid him. Kelley appealed from that part of the judgment making awards against him; and the insurance company appealed from that part denying its motions for leave to intervene, and for failure of the court to grant it recovery as prayed in the complaints in intervention.

Kelley challenges the judgment against him on the ground that it was not his work which was being performed by Wray at the time of the accident; that he had no right of control of the activity or movements of Wray which could have caused or contributed to the cause of the accident; and that therefore he is not liable for damages arising proximately from negligence on the part of Wray in the...