Oklahoma City Const. Co. v. Peppard
| Decision Date | 14 April 1914 |
| Docket Number | 3339. |
| Citation | 140 P. 1084,43 Okla. 121,1914 OK 189 |
| Parties | OKLAHOMA CITY CONST. CO. ET AL. v. PEPPARD. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a contractor undertakes in general terms to do work, and the employer reserves the power to direct what shall be done, and how it shall be done, the latter is the principal or master and is liable for the negligence of the former while constructing the work by which the plaintiff is injured. The principal or master is liable for the acts and negligence of his agent or servant in the course of his employment although he did not know of or authorize the particular acts complained of.
Every person who is found performing the work of another is presumed to be in the employment of the person whose work is being done, and if the facts be such as to exempt the owner of the property improved, or the persons for whom the work is being performed, from liability for the acts of those performing such work, it devolves upon him who claims such exemption to make proof of the terms of the contract showing that the relation of master and servant did not exist.
Record examined, and held, that no reversible error was committed by the trial court by giving or refusing to give instructions.
Error from District Court, Oklahoma County; John J. Carney, Judge.
Action by Mrs. Onno Peppard against the Oklahoma City Construction Company, a corporation, and another, for wrongful death of plaintiff's husband. Judgment for plaintiff, and defendants bring error. Affirmed.
J. S Ross and Snyder, Owen & Lybrand, all of Oklahoma City, for plaintiffs in error.
Harris & Nowlin, of Oklahoma City, for defendant in error.
This was an action commenced by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below, to recover damages for the wrongful death of her husband, who was killed by falling from a scaffold while engaged in working as a bricklayer upon the Skirvin Hotel during its construction. The defendants answered separately. The answer of the Oklahoma City Construction Company admits its incorporation, and that at the time the injury was inflicted upon the deceased it was engaged in the erection of the Skirvin Hotel, and that the deceased was in its employ, and further in effect alleges (1) that if there was anything unsafe or insecure in the construction of said scaffold, or the appliances connected therewith, which caused or contributed to the happening of the accident complained of it was due entirely to the negligence of the plaintiff's fellow servants; (2) that the deceased at the time he entered its employment assumed all the risks and dangers ordinarily incident to such occupation, and that one of the risks incident to the employment in which he was engaged at the time of the happening of the accident alleged was the risk of injury from the falling of the scaffold; (3) that the deceased carelessly and negligently failed to use or exercise ordinary or reasonable care for his own safety and protection; (4) that if there was any negligence on the part of the servants which contributed to or caused the accident complained of, other than that of the deceased himself, that said servants who were guilty of said negligence were fellow servants of the deceased. The answer of the defendant Skirvin admits that he is now, and was at the time mentioned in the plaintiff's petition, the owner of what is known as the Skirvin Hotel building, and the lots on which it is situated in Oklahoma City. In other respects, his answer in effect is the same as the Oklahoma City Construction Company's answer, except that it contains an allegation to the effect that the Oklahoma City Construction Company was an independent contractor. Upon trial to a jury there was a verdict for the plaintiff in the sum of $12,000, upon which judgment was duly rendered, to reverse which this proceeding in error was commenced.
The grounds for reversal, as stated by counsel for plaintiff in error in their brief, are (1) that the evidence establishes the fact beyond serious controversy that the Oklahoma City Construction Company was an independent contractor, and was solely responsible for the conditions which obtained on this building during its construction; (2) instruction No. 3 offered by plaintiff in error should have been given without modification; and (3) it was error to give instruction No. 5 given by the court. We think the evidence is sufficient to establish the relation of principal and agent, or master and servant, between the defendants. The record discloses that the defendant Skirvin, the owner, and the construction company entered into a written contract which, no doubt specifically defines their legal relations to each other, and that counsel for some reason preferred to have the relationship shown by parol evidence. While Mr. Shenk, the president of the construction company, was being examined by counsel for plaintiff as to the relation existing between his company and Mr. Skirvin, the...
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