Nelson v. A.M. Lockett & Co.

• Decision Date: 23 April 1952
• Docket Number: No. 34890,34890
• Citation: 243 P.2d 719,206 Okla. 334
• Parties: , 1952 OK 168 NELSON v. A. M. LOCKETT & CO., Limited, et al.
• Court: Oklahoma Supreme Court

Page 719

243 P.2d 719

206 Okla. 334, 1952 OK 168

NELSON v. A. M. LOCKETT & CO., Limited, et al.

No. 34890.

Supreme Court of Oklahoma.

April 23, 1952.

Syllabus by the Court.

The statutes of this state do not give a cause of action to a wife to recover compensation in damages for loss sustained by her on account of personal injuries to her husband, occasioned by the negligence of a third party.

W. E. Green, J. C. Farmer, Robert J. Woolsey, Otho Flippo, and Jack B. Bailey, all of Tulsa for plaintiff in error.

Hudson, Hudson & Wheaton, Tulsa, for defendants in error.

PER CURIAM.

This action was brought by Mrs. Isabelle Nelson, plaintiff, against the defendants, A. M. Lockett & Company, Ltd., and The Babcock & Wilcox Company, both corporations, to recover damages for loss of consortium suffered by her due to an injury received by her husband while working for the defendants. The husband applied for and received workman's compensation for his injuries. The trial court sustained the general demurrer of defendants to plaintiff's petition, and when she elected to stand thereon dismissed the action. Plaintiff appeals.

Plaintiff alleges that on June 16, 1949, her husband, S. A. Nelson, was employed by A. M. Lockett & Company, engaged in construction work, and was working on a preheater, which was being erected by the defendants at Weleetka, Oklahoma; that the work was under the general supervision and control of The Babcock & Wilcox Company, which under its contract with Lockett & Company was to be responsible for safety measures for the protection of employees working on the project.

Plaintiff further alleges that her husband, at the time of his injury, was standing on a flue sheet, twenty feet in the air, and then alleges as follows:

'Plaintiff alleges that while her said husband was working on the platform formed by the flue sheet, that on the ends of the flue sheet there were tube sheets which were loose and made of flexible steel and that they were permitted to remain in such a condition of flexibility that unless the sheets were welded and securely fastened, said sheets would act like the tail gate of a truck or the hinge of a door and would swing and drop downward. Plaintiff alleges that such sheets were manufactured by the defendant, The Babcock & Wilcox Company and that The Babcock & Wilcox Company knew that in the installation of such sheets and in the erection of the heater that workmen would have to stand upon said sheets and that they were manufactured in a negligent manner, and of inferior steel that would bend, and that they were wired with wire and not welded, so that a man standing upon such sheets working twenty (20) feet or more above the ground, would be working upon a trap door, and that the installation was a death trap; Plaintiff alleges further that while her husband was standing on the tube sheet on the end he asked one, Peters, an agent, servant and employee of the defendants, whether such sheet was safe and was informed several times that it was, when in truth and in fact it was unsafe, and, while plaintiff's husband was standing upon that part of the flue sheet which was on one end of the installation and while he was performing his duties, the sheet gave way, as a trap door, and dropped because same was carelessly and negligently and insecurely fastened with small wire instead of being welded as was proper, and caused the plaintiff's husband to fall and receive serious and permanent injuries and damaging the plaintiff, as will be more fully set out hereinafter.'

The plaintiff further alleges that the defendants were negligent in failing to have the sheet securely welded and fastened at the time when the weight of persons working on the metal platform was placed upon the tube sheet and that they were negligent in having same manufactured out of thin steel which would bend when the weight of persons was placed upon it, and that the foreman, Peters, was incompetent and an habitual drunkard to the knowledge of the defendant, Lockett &...