Peak Drilling Co. v. Halliburton Oil Well Cementing Co., No. 4862.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: BRATTON and MURRAH, Circuit , and SAVAGE
• Citation: 215 F.2d 368
• Parties: PEAK DRILLING CO. v. HALLIBURTON OIL WELL CEMENTING CO. et al.
• Docket Number: No. 4862.
• Decision Date: 16 August 1954

215 F.2d 368 (1954)

PEAK DRILLING CO.
v.
HALLIBURTON OIL WELL CEMENTING CO. et al.

No. 4862.

United States Court of Appeals Tenth Circuit.

August 16, 1954.

Gus Rinehart, Oklahoma City, Okl., for appellant.

Duke Duvall, Oklahoma City, Okl., and Robert E. Rice, Duncan, Okl. (Robert

215 F.2d 369

O. Brown, Duncan, Okl., was with them on the brief), for appellees

Before BRATTON and MURRAH, Circuit Judges, and SAVAGE, District Judge.

MURRAH, Circuit Judge.

The appellant, Peak Drilling Company, appeals from a judgment of the District Court dismissing a third-party complaint, in an action by an employee of appellee, Halliburton Oil Well Cementing Company, against Peak, for personal injuries sustained in the course of his employment with Halliburton, as a result of the alleged negligence of Peak. Calvery v. Peak Drilling Co., D. C., 118 F.Supp. 335.

In his complaint, the employee, Calvery, alleged in substance that while Peak was drilling an oil well as an independent contractor for the Sinclair Oil and Gas Company, his employer, Halliburton, contracted with Sinclair to make a hook-wall test on the drilling well; that while engaged in the performance of the test, in the course of his employment with Halliburton, an employee of Peak negligently started the rotary table on the drilling rig, causing an attachment to the drill pipe to swing around, striking and injuring the plaintiff. In its answer, Peak admitted the jurisdictional facts, but denied negligence, and pleaded contributory negligence. It was then alleged that in any event, Halliburton had charge of the operations at the time of the plaintiff's injury and all persons working on the well were the special servants of Halliburton and under the direct supervision of its employee plaintiff, and any negligence of any of the workmen was therefore chargeable to Halliburton and to plaintiff's fellow servants.

In its third-party complaint, Peak pleaded its drilling contract with Sinclair and the contract between Halliburton and Sinclair, whereby Halliburton was to furnish certain equipment for the performance of the testing operations, and then alleged that the accident and resulting injuries were caused by the negligence of the third-party defendant, Halliburton, in one of the following particulars: "(1) The tools, machinery and equipment furnished by third-party defendant in the operation then in progress were defective. (2) The workmen furnished by third-party defendant were careless and did not exercise that degree of skill reasonably prudent workmen would have under the circumstances. (3) The workmen and employees of third-party defendant used improper methods of operating their equipment." The prayer was for a judgment over against Halliburton for all sums adjudged against Peak in favor of the first-party plaintiff, Calvery.

It was expressly agreed that Calvery's injuries arose out of and in the course of his employment with Halliburton, and that he was covered by the Workmen's Compensation Law of Oklahoma, 85 O.S.1951 § 1 et seq., where the accident occurred. It is conceded that third-party practice under Rule 14(a), F.R.C.P., 28 U.S.C.A. neither creates nor enlarges upon the substantive rights of the parties, but merely provides the procedure for the assertion of those rights under applicable Oklahoma law; and that Oklahoma law gives no right of contribution or indemnity to a joint tortfeasor, but leaves the parties as it finds them. Peak rests its asserted right to indemnity squarely upon the so-called "lenient exception" to the general rule, recognized in Oklahoma, which gives the right of indemnity to one constructively or vicariously liable to a party whose injuries were caused by the primary or active negligence of another, as where, for example, under the doctrine of respondent superior, a master is liable for the negligence of his servants, or a municipality is liable to a member of the public for failure to discover and correct a nuisance created by the negligence of an abutting property owner. See United States v. Acord, 10 Cir., 209 F.2d 709, and Oklahoma cases cited there. See also Union Stock Yards Co. of Omaha v. Chicago B. & Q. Railroad Co., 196 U.S. 217, 25 S.Ct. 226, 49 L.Ed. 453; 27 Am.

215 F.2d 370

Jur. Indemnity §§ 18-19, p. 467; 42 C.J.S.,...