Oklahoma Farm Bureau Mut. Ins. Co. v. Mouse, 35607

• Decision Date: 07 July 1953
• Docket Number: No. 35607,35607
• Citation: 268 P.2d 886
• Parties: OKLAHOMA FARM BUREAU MUT. INS. CO. v. MOUSE.
• Court: Oklahoma Supreme Court

Page 886

268 P.2d 886

1953 OK 212

OKLAHOMA FARM BUREAU MUT. INS. CO. v. MOUSE.

No. 35607.

Supreme Court of Oklahoma.

July 7, 1953.

Rehearing Denied March 23, 1954.

Syllabus by the Court.

1. A partnership is a distinct entity from the individual members constituting it.

2. A partnership as employer constitutes an entirely different employer than would exist if one of the partners was the individual employer.

3. A clause, in an automobile liability insurance policy issued to an individual, which excludes from the operation of said insurance contract, bodily injuries to any employee of the insured while engaged in the business of the insured, does not exclude therefrom, bodily injuries to an employee of a partnership, of which the insured is a member.

4. Bodily injuries, suffered by plaintiff when he fell to the pavement while attempting to bend a breather pipe on a combine being transported on a motor truck and which had become caught in a bridge over the highway, were covered by an automobile liability insurance policy, which provided for liability for bodily injuries suffered 'as result of the ownership, maintenance or use' of said truck.

Pierce, Rucker, Mock, Tabor & Duncan, Oklahoma City, for plaintiff in error.

Ira Monroe, Clinton, for defendant in error.

DAVISON, Justice.

This is a proceeding in garnishment against the Oklahoma Farm Bureau Mutual Insurance Company, as garnishee, whereby the plaintiff, Roy Mouse, seeks payment of a judgment in his favor against Rubal Ruther and Leland A. Seba, a copartnership, as defendant. The parties will be referred to as they appeared in the trial court.

Plaintiff instituted this action against the defendant by filing his petition, which, except for formal parts, is as follows:

'Comes now the plaintiff, Roy Mouse, and for his cause of action against the defendants Rubal Ruther and Leland A. Seba, a co-partnership, alleges and states:

'1. That the defendants, Rubal Ruther and Leland A. Seba, at the time this cause of action arose and for some time thereafter were partners in the business of custom combining and following the wheat harvest and that the said Rubal Ruther is now and has been for many years a resident of Custer County, Oklahoma,

'2. That on or about the 6th day of July, 1949, the said Rubal Ruther came to the home of the plaintiff and employed the said plaintiff to work for the partnership of Rubal Ruther and Leland A. Seba as a truck driver and combine operator at an hourly wage of $1.25; that the said plaintiff accepted said employment and went to work for said copartnership. That said plaintiff on or about the 15th day of July 1949, and while in the employ of the defendants was riding in the cook shack with the said Leland A. Seba and were following a self-propelled combine loaded upon a truck; that near the town of Pegosha Springs, Colorado, and while attempting to go under a bridge, the breather pipe of the combine, loaded upon the truck immediately in front of the automobile driven by one of the defendants, Leland A. Seba, caught upon the bottom of said bridge; that the said Leland A. Seba ordered and commanded the said plaintiff to climb upon said truck and upon the top of the combine and to bend down the breather pipe so that it would clear said bridge; that the plaintiff trial to bend said pipe while holding on to the combine with one arm and was unable to do so and thereupon the defendant Leland A. Seba ordered his employee, Roy Mouse, to 'grab the son of a bitch and bend it down'; that the plaintiff acting under the direct orders of the defendant grabbed the said pipe with both hands and that the bracket holding said pipe to the said of the combine was broken and threw the plaintiff to the highway and broke, crushed, and mangled his right arm and caused internal injuries to the head of said plaintiff.

'3. Plaintiff alleges that his said injuries were caused by the negligence and want of care of the defendants in either or all of the following particulars, to-wit:

'(1) That the defendants were guilty of negligence and want of care in ordering, commanding and instructing this plaintiff into a place of danger and ordering him to perform an act that was dangerous in itself while said plaintiff was in this place of danger, to-wit: atop a self propelled combine which was loaded upon a truck and while said truck was upon a heavily traveled highway; and by ordering, commanding and instructing this plaintiff to perform a dangerous act in an improper, dangerous, and unskillful manner, all of which was known to the defendants and that this plaintiff relied upon the defendants knowledge as to the propriety of such order, command and instruction and did so act as ordered, commanded and instructed by his master and that by so acting under said order, command and instruction of the defendants, this plaintiff was seriously and permanently injured as hereinafter set out and that such injury was the direct and proximate result of his obedience to the order, command and instruction of the defendants.

'4. Plaintiff alleges that he was without fault in the premises and that his injury as hereinafter set out was directly and proximately caused by the negligence and want of care of his masters, the defendants herein, as hereinbefore set out, but for which this plaintiff's injury would not have occurred.

'5. Plaintiff further alleges that a result of said accident that he was rendered unconscious, and remained unconscious for several hours; that his right arm was crushed, broken and mangeld and that the fingers on his right hand were broken and mangled and that he suffered a severe concussion of the head and that for several days thereafter he had a drainage of blood from his mouth and ears, and that his body was otherwise injured and bruised; that he has lost the use of--right arm and hand and that said loss is permanent and that his ability to earn a livelihood has been permanently and seriously impaired, and that because of said injury as aforesaid that this plaintiff has been damaged in the sum of $20,000.00; plaintiff further alleges that by reason of the physical and mental suffering resulting from his said injury and from the pain and suffering which he has had as a result of his injury that he is entitled to recover an additional sum of $15,000.00 from said defendants.

'6. Plaintiff further alleges that his doctor bills incurred immediately after the injury were paid for by the defendants, but that he is still taking treatments from Dr. Paul B. Lingenfelter and that he has become liable to pay to him the sum of $92.00 at this date and that he is taking treatments at this time and will incur more doctor bills in the future, the amount of which is unknown.

'Wherefore, plaintiff prays judgment against the defendants in the sum of $35,092.00 and the costs of this action.'

A trial of the case to a jury culminated in the following judgment, to-wit:

'On this 26th day of September, 1950, came plaintiff in person and by his attorney, Ira Monroe, and also came the defendant, Rubal Ruther and Leland A. Seba, a co-partnership, service having been had upon said defendant by serving Rubal Ruther and he appearing only and by his attorney, R. B. Strong, Sr., and this case came on for trial in its regular...