Page v. Hardy

• Decision Date: 25 November 1958
• Docket Number: No. 37963,37963
• Citation: 1958 OK 283,334 P.2d 782
• Parties: Kenneth G. PAGE, Plaintiff in Error, v. Donald HARDY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 782

334 P.2d 782

1958 OK 283

Kenneth G. PAGE, Plaintiff in Error, v. Donald HARDY, Defendant in Error.

No. 37963.

Supreme Court of Oklahoma.

Nov. 25, 1958.

Rehearing Denied Jan. 27, 1959.

Syllabus by the Court

1. An independent contractor is one who engages to perform a certain service for another according to his own manner and method, free from control and direction of his employer in all matters connected with the performance of the service, except as to the result or product of the work.

2. When the evidence as to relationship is conflicting and such that the minds of reasonable men may differ as to whether the relationship established was that of master and servant or contractee and independent contractor, the determination thereof is for the jury, with the question submitted under proper instruction by the court.

3. Instructions must be couched in concise understandable language, setting forth the various elements in the light of which the evidence is to be considered, each handled in an equal manner, without particular emphasis on any one thereof.

4. Instructions of the trial court must be viewed in the light of the evidence upon which they operate and of the instructions as a whole. When thus considered if it does appear probable that the rights of the complaining party were prejudiced by an erroneous instruction, a verdict against said party will be set aside on account thereof.

Appeal from the District Court of Pawnee County; W. Lee Johnson, Judge.

Action to recover damages for personal injuries. From a judgment in favor of the defendant, the plaintiff appeals. Reversed and remanded for new trial.

Jack B. Sellers, Drumright, for plaintiff in error.

Alfred B. Knight, Tulsa, for defendant in error.

CORN, Vice Chief Justice.

Kenneth G. Page was an employee of H. M. Lundquist and T. M. Anderson. On the day in question he was working for them on their producing oil and gas lease covering lands situated in Pawnee County, Oklahoma.

Donald Hardy, d/b/a Donald Hardy Welding Service at Cleveland, Oklahoma, carried on a general welding service, with his own tools and truck, doing the job at an hourly rate of $5, at his place of business or on the premises of those requiring the work done.

The foreman for Lundquist and Anderson employed Hardy to do a welding job on a used separator located on the Pawnee County lease. He went to the premises with the tools and equipment and did the job. Approximately two days later the foreman advised him that the separator had some leaks and requested that he again come to the lease and repair them.

Hardy had completed the job of repairing the leaks and was rolling up his tools preparatory to loading them on his truck when Lundquist and Anderson drove up. After checking the separator they decided that the connections on the water syphon on the separator should be lowered and requested that Hardy perform the necessary welding required to meet the change in specifications.

Page was on the job doing whatever the foreman told him to do. He was directed to render any assistance which Hardy might require.

Proceeding on the new job Hardy cut the first pipe. Salt water drained from the tank. Page dug a ditch to contain such water.

While cutting a second pipe which was also required to meet the specifications, accumulated oil and gas therein ignited and a violent explosion resulted. Hardy suffered injuries. Although Page was some 20 or 30 feet away the explosion knocked him to the ground and caused him to suffer extensive injuries from which he was confined to the hospital and under doctors' care for some time.

Page brought this action against Hardy, taking the position that Hardy failed to exercise proper care in checking the pipes and tank for oil and/or gas before cutting the pipe with the torch; that the explosion resulted; that Hardy's negligence was the proximate cause of his injuries which were permanent and progressive. Hardy denied that he failed to use due care, alleged contributory negligence and that Page was a co-employee and that Page's only remedy was against his employers, Lundquist and Anderson, under the Workmen's Compensation Act, 85 O.S.1951 § 1 et seq.

In this reply Page denied that he was a co-employee of Hardy and alleged that Hardy was an independent contractor.

The trial resulted in a jury verdict in favor of the defendant. In due time, after motion for new trial was overruled, the appeal was perfected to this court.

Plaintiff takes the position that under the evidence the only conclusion that could be reached was that Hardy was an independent contractor and that the court erred in submitting the question to the jury.

We have without exception held that an independent contractor is one who engages to perform certain service for another, according to his own manner and method, free from control and direction of his employer in all matters connected with the performance of the service, except as to the result or product of the work. In other words independent contractor denotes any person to whom the revising or repair of a chattel is entrusted in such a way as to give him charge and control of the details of doing the work. Keith v. Mid-Continent Petroleum Corp., Okl., 272 P.2d 371; Ellis & Lewis, Inc., v. Trimble, 177 Okl. 5, 57 P.2d 244; Taylor v. Langley, 188 Okl. 646, 112 P.2d 411. It is evident and we have so held that as a general rule the line of demarcation between an independent contractor and a servant is not clearly drawn, but the question of such relationship must be determined upon the facts peculiar to such case. The various elements to be considered are (a) the nature of the contract between the parties, whether written or oral; (b) the degree of control which, by the agreement, the employer may exercise on the details of the work or the independence enjoyed by the contractor or agent; (c) whether or not the one employed is engaged in a distinct occupation or business and whether he carries on such occupation or business for others; (d) the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (e) the skill required in the particular occupation; (f) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work; (g) the length of time for which the person is employed; (h) the method of payment, whether by the time or by the job; (i) whether or not the work is a part of the regular business of the employer; (j) whether or not the parties believe they are creating the relationship of master and servant; and (k) the right of either to terminate the relationship without liability.

Testing the evidence in...