Oklahoma City v. Caple
| Decision Date | 28 May 1940 |
| Docket Number | 28340. |
| Citation | 105 P.2d 209,187 Okla. 600,1940 OK 292 |
| Parties | OKLAHOMA CITY v. CAPLE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 10, 1940.
Syllabus by the Court.
1. In action for damages by Civil Works Administration workman against city, defense that plaintiff accepted compensation from United States is not available where it is not shown plaintiff was required to or had assigned his cause of action to the United States.
2. Maintenance of action by injured workman against third party is impliedly sanctioned by provisions of United States Compensation Act, 39 Stat. 747, 5 U.S.C.A. § 776, and recovery by employee bars action by United States.
3. Relief projects contemplated by Federal Emergency Relief Act of 1933, 48 Stat. 55, 15 U.S.C.A. §§ 721 to 728 are not industries or activities covered by Oklahoma Workmen's Compensation Act, and workman employed by CWA injured on such project is not entitled to compensation benefits of latter act.
4. The relation of the federal administrative agency, the CWA, to city for whom sewer is built, is analogous to that of independent contractor, where no supervision or control of the work is had by the city.
5. A person performing work through an independent contractor is not liable for damages to third persons caused by the negligent performance of the work by the latter, except where the work is inherently dangerous or unlawful or in cases where the principal contractor owes a contractual or defined legal duty to the injured party in the performance of the work.
6. The excavation of a sewer ditch is not inherently dangerous.
7. Where municipality engages an independent contractor to excavate sewer ditches the former is under no legal duty to correct or render safe any dangerous condition brought about by the actual performance of the work.
Appeal from District Court, Oklahoma County; Ben Arnold, Judge.
Action by C. M. Caple against the City of Oklahoma City for injuries sustained as the result of a cave-in while plaintiff was engaged in the digging of a Civil Works Administration project sewer ditch for defendant city. From judgment for plaintiff, defendant appeals.
Reversed.
A. L Jeffrey, Municipal Counselor, and Leon Shipp, Asst. Municipal Counselor, both of Oklahoma City, for plaintiff in error.
W. P Morrison, of Oklahoma City, A. L. Morrison, of El Reno, and John Morrison, of Oklahoma City, for defendant in error.
Plaintiff in error appeals from a judgment rendered against it in favor of defendant in error for personal injuries sustained by the latter as the result of a cave-in while engaged in the digging of a Civil Works Administration project sewer ditch for the city. The parties are hereinafter referred to as they appeared in the trial court.
Defendant city charges error in the striking from its answer and excluding its offered proof, of its defense that plaintiff had accepted compensation from the United States government and was therefore barred from asserting any claim against the city. There is no error in this ruling.
The United States Compensation Act of September 7, 1916, c. 458 § 26, 39 Stat. 747, 5 U.S.C.A. § 776, provides that: "If an injury or death for which compensation is payable under this Act [chapter] is caused under circumstances creating a legal liability upon some person other than the United States to pay damages therefor, the commission may require the beneficiary to assign to the United States any right of action he may have to enforce such liability of such other person or any right which he may have to share in any money or other property received in satisfaction of such liability of such other person, or the commission may require said beneficiary to prosecute said action in his own name."
It is not shown that plaintiff was required to or had assigned his cause of action to the United States. Without such assignment the United States has no right to bring the action against the defendant nor does it have any property right therein.
The act by providing that the injured employee, from the moneys recovered from a third party as a result of a suit brought by him, must reimburse the United States for compensation previously received, necessarily by implication, sanctions the bringing of such action by the injured employee, and a recovery by the employee bars an action by the United States. Lassell v. City of Gloversville, 217 A.D. 323, 217 N.Y.S. 128; Drake v. New York State Electric & Gas Corporation, 162 Misc. 167, 294 N.Y.S. 227; Chiles v. Rohl, 47 S.D. 580, 201 N.W. 154; Dempster Mill Mfg. Co. v. Wiley, Tex.Civ.App., 1939, 131 S.W.2d 257. In Dahn v. Davis, 258 U.S. 421, 42 S.Ct. 320, 66 L.Ed. 696 (), both remedies available to the injured employee were against the United States, and having sought and obtained compensation from the United States the employee was thereby precluded from his other remedy for a second satisfaction of the same wrong against the government.
Defendant contends that plaintiff's relief, if any, must be had exclusively under the Workmen's Compensation Act, 85 Okl.St.Ann. § 1 et seq.
The proof shows plaintiff was under the direction and supervision of the CWA. He was paid through that agency. The work being done was such a relief project as was contemplated by the Federal Emergency Relief Act of 1933, 48 Stat. 55, 15 U.S.C.A. §§ 721 to 728. The CWA undertook these projects with the consent of the public body affected by the project, solely for the relief of unemployment. These projects may, as here, involve hazardous work, but are in no sense industries or activities as contemplated by the Workmen's Compensation Act. The contract of service by plaintiff was had entirely with the CWA. The purpose of the CWA was being accomplished by carrying out these projects with workmen employed by it. As respects the defendant the plaintiff was not the employee of the CWA in the sense contemplated by the Workmen's Compensation Act, and so as to entitle him to its benefits. The provisions of the act cannot be judicially extended and construed as affording something in the nature of insurance benefits for the relief of the unemployed. See Hoover v. Independent School Dist. etc., 220 Iowa 1364, 264 N.W. 611; Jackson v. North Carolina Emergency Relief Administration, 206 N.C. 274, 173 S.E. 580; McBurney v. Industrial Accident Commission, etc., 220 Cal. 124, 30 P.2d 414; Basham v. County Court, etc., 114 W.Va. 376, 171 S.E. 893; Vaivida v. City of Grand Rapids, 264 Mich. 204, 249 N.W. 826, 88 A.L.R. 707; State ex rel. State Board, etc., v. Nevada Industrial Commission, 55 Nev. 343, 34 P.2d 408.
Defendant further contends that (a) if an injury resulted from the manner of doing the work rather than from the mere performance of it, the owner of the premises (city) cannot be held liable in an action by a servant of an independent contractor; and (b) the owner's duty to a servant extends only to dangers existing on the premises at the time the work started and not to conditions caused by the progress of the work.
Before proceeding to a discussion of these contentions, a more extended description of the situation then existing is necessary.
Plaintiff as a CWA workman was assisting in the digging of a sewer line ditch. At the time of the accident the ditch was about 18 feet deep. Plaintiff at work was standing on a relay platform about 6 feet below the surface, throwing dirt to the surface. The ditch walls were braced by boards with spaces or gaps of 3 to 5 inches between, placed upright, and across these were timbers at top, middle and bottom. These timbers with boards behind them were held in place against the ditch walls by screw jacks in position across the ditch. The upright boards lacked from 2 to 3 feet of extending to the ditch bottom.
Practically parallel with the ditch being dug and from 1 to 3 feet distant from the north wall of the ditch, and 8 feet beneath the surface, extended an old city sewer line. Fluid from that sewer line softened the north wall and soaked to the ditch bottom level and washed sand there in the wall into the bottom of the ditch. So much of that ditch wall was permitted to find its way into the ditch so that the wall at the point where plaintiff was working collapsed, causing the platform upon which plaintiff was working to fall, injuring plaintiff. Plaintiff had been working for nearly three days at that point in the ditch. As to all these matters plaintiff himself testified.
Plaintiff's action is based solely upon the alleged negligence of the city in failing to repair the sewer leak. The record shows that the city exercised no control or supervision over the CWA's ditching operations.
This sewer construction project, as other like projects, was not undertaken primarily for the benefit of the city, but for the relief of unemployment, and but incidentally for the convenience of the general public. The federal government assumed the execution of these public works projects in virtue of its obligation to its citizens and its power to further their general welfare. In this situation the relation existing between the federal government and the city was not one of contract in the usual sense of that term. The relation of the federal administrative agency, the CWA here, to that of the city while not that of an independent contractor in the ordinary sense of that term, is a relation so analogous to that relation that, as relates to the determination of the respective duties and liabilities created, the relation may be treated as such, with the plaintiff here as a CWA employee. See Brooks v. City of Seattle, 193 Wash. 253, 74 P.2d 1008.
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