Parkhill Truck Co. v. Wilson

• Decision Date: 28 April 1942
• Docket Number: Case Number: 29437
• Citation: 1942 OK 168,125 P.2d 203,190 Okla. 473
• Parties: PARKHILL TRUCK CO. v. WILSON
• Court: Oklahoma Supreme Court

1942 OK 168

125 P.2d 203

190 Okla. 473

PARKHILL TRUCK CO. v. WILSON

Case Number: 29437

Supreme Court of Oklahoma

Decided: April 28, 1942

Syllabus

¶0 1. WORKMEN'S COMPENSATION--Statutory provision not affecting liability of negligent third party in common-law action by injured employee.

Section 13368, O. S. 1931, 85 Okla. St. Ann. §44, applies only to the injured workman, his employer and insurance carrier; it dos not affect the liability of a negligent third party and it furnishes no defense to a common-law action based on negligence against such third party by a workman injured in the course of his employment and covered by the Workmen's Compensation Act.

2. SAME--Election of remedy and assignment of cause of action by injured employee under statute not outright assignment of cause of action at common law for negligence against third party.

An election asserted and approved under rules and re ulations of the Industrial Commission thereunder, and an assignment of the cause of action, whether accomplished by a written assignment or acts of the injured' employee and his employer and/or insurance carrier, being for the protection -of the employer and insurance carrier, do not constitute an outright assignment of the cause of action at common law for negligence against a third party.

3. SAME--Negligence action by injured employee against third party not precluded by employee's arrangement with employer and insurance carrier to accept as advancements payments equalling amounts provided by Workmen's Compensation Act.

An arrangement between an injured employee on the one hand and his employer and insurance carrier on the other whereby advancements, benefits, or compensation are made by reason of the applicability of the Workmen's Compensation Act does not prevent such employee from suing a negligent third party at common law, and, though such an arrangement privately consummated between the claimant, his employer, and insurance carrier may have the same effect as an election asserted and assignment made under the rules and regulations of the Industrial Commission and with its approval, does not affect the capacity of such injured employeevto sue a third party nor does it furnish a defense to such an action.

4. SAME--Former decisions overruled.

The following cases, which have either expressed views contrary or approved procedure not in accord with our views herein set forth, are overruled insofar as they are in conflict' herewith: Barton v. Okla. K. & M. Ry. do., 96 Okla. 119, 220 P. 929; Ridley v. United Sash & Door Co. et al., 98 Okla. 80, 224 P. 351; Eagle-Picher Lead Co. et al. v. Kirby, 109 Okla. 96, 235 P. 176.

5. SAME--Injured employee of general contractor not in "same employ" with negligent third party who was an independent subcontractor.

One who is a direct employee of a general contractor is not a co-employee or employed in "same employ" of an independent subcontractor where the facts show that the employee was at the time of his injury hot engaged in the performance of the work that the independent subcontractor was hired to perform.

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Action by T. E. Wilson against Parkhill Truck Company to recover for personal injuries. Verdict and judgment for defendant. Subsequently trial court sustained plaintiff's motion for new trial, and defendant appeals. Affirmed.

Hudson & Hudson, of Tulsa, for plaintiff in error.

Ward, Justus & Ward, of Tulsa, for defendant in error.

ARNOLD, J.

¶1 T. E. Wilson filed this action in the district court of Tulsa county for damages for personal injuries alleged to have been caused by the negligent acts of the defendant, Parkhill Truck Company.

¶2 The plaintiff was an employee of the Osage Construction Company. The Osage Construction Company had a contract with the Continental Oil Company to remove and recondition certain pipe. The Osage Construction Company entered into a subcontract with the defendant, Parkhill Truck Company, to pick up the pipe, which had been recovered from the ground by the Osage

¶3 Construction Company, and haul it to certain racks for reconditioning and then to return and string said pipe along the pipe line right of way belonging to the Continental Oil Company.

¶4 The Osage Construction Company came within the purview of the Workmen's Compensation Act. The plaintiff, while engaged in his duties as an employee of the Osage Construction Company, was injured by reason of the alleged negligent acts of the defendant, Parkhill Truck Company.

¶5 It is admitted that, under the conditions which the plaintiff was injured, he would be entitled to recover against his employer, the Osage Construction Company, under the Workmen's Compensation Act. He filed his claim with the State Industrial Commission and immediately thereafter filed an application requesting the commission to hold his claim in abeyance pending the outcome of an action to be filed by him at common law against the defendant, a third party, for negligence. He expressly stated therein that he elected to sue the third party. The State Industrial Commission thereafter entered an order, recognizing plaintiff's election to proceed at common law against the third party and holding the claim in abeyance pending the outcome of the contemplated action against the third party. There was no written assignment of the cause of action against the third party required nor made.

¶6 Prior to filing the claim with the commission, the plaintiff had entered into a written agreement with his employer to the effect that, whereas he desired to prosecute a claim against the third party, the employer would pay medical bills and an amount equal to compensation in the meantime; that it would continue to pay him $18 per week in lieu of compensation during the period of his disability, or until his claim against the third party was terminated; that he was to retain any amount received in excess of the amount advanced, but hold his employer and its insurance carrier harmless to the extent of only the amount recovered by him.

¶7 The trial judge on the trial of this case instructed the jury that, if they believed that the aforesaid advances were really intended as compensation and that the notes given for the advancements were signed merely for the purpose of deceiving defendant and the State Industrial Commission and for leading defendant and the commission into the belief that the money was advanced as a loan, when in fact it was intended as compensation, then the verdict should be for defendant. The jury returned a verdict for the defendant. Thereafter the trial judge sustained plaintiff's motion for a new trial; one of the grounds given by him 'being that he had erred in instructing' the jury in the manner stated above. The defendant appealed. The parties will be referred to herein as they appeared in the trial court.

¶8 The defendant contends that the question of whether plaintiff accepted the benefits of the Workmen's Compensation Act and what his "intention" was in "so doing" were proper questions of fact for the determination of the jury; that the jury finding thereon was binding because properly submitted. The defendant further contends that the question of contributory negligence was an issue under the evidence and properly submitted by the court. The defendant also contends that it was not a so-called "third party," but, on the contrary, was a co-employee of the plaintiff, and that by reason of this fact the plaintiff had no cause of action against it; that the demurrer to the evidence should have been sustained by the court and plaintiff's cause of action dismissed; that the evidence amply sustains the verdict of the jury in every respect, and the trial court, therefore, abused its discretion in sustaining the motion for a new trial.

¶9 Plaintiff contends that it is the duty of the trial court upon a motion for a new trial, which challenges the verdict upon the ground that it is contrary to the evidence, to weigh the evidence and approve or disapprove the verdict; that if the verdict is such that in the opinion of the trial court it should not be permitted to stand because the court cannot conscientiously approve same, and it believes-that it should have been for the opposite party, then its duty is to set the verdict of the jury aside and grant a new trial. Plaintiff also contends that the evidence in the case was not sufficient to raise the question of contributory -negligence and that the court erred in submitting same to the jury; he further contends that the question of whether he had elected to accept benefits under the Workmen's Compensation Act was wholly immaterial as regards the issues between him and the defendant company; that whether or not he had complied with the provision of the Workmen's Compensation Act relative to his right to proceed against a negligent third party presents issues that concern no one except the Industrial Commission, his employer and insurance carrier. He further contends that in any event such issues do not present questions of fact for the determination of a jury; that the trial court 'having committed errors of law and having concluded that it could not conscientiously approve the verdict of the jury, either as to law or fact, the court did not abuse its discretion in granting a new trial.

¶10 The Workmen's Compensation Act was enacted by the Legislature for the benefit of injured employees engaged in the hazardous . employments described therein. Such an employment was that of the plaintiff at the time of his injury. By this act it was not intended to affect, in any manner, the right of one to proceed against a negligent third party for personal injuries. The Workmen's Compensation Act provides compensation for injury without regard to negligence. It is ob vious, therefore, that a cause of action arising under the Workmen's Compensation Act is by nature distinctly different from the common-law remedy for, damages...