Peak Drilling Co. v. Halliburton Oil Well Cementing Co.

• Decision Date: 16 August 1954
• Docket Number: No. 4862.,4862.
• Citation: 215 F.2d 368
• Parties: PEAK DRILLING CO. v. HALLIBURTON OIL WELL CEMENTING CO. et al.
• Court: U.S. Court of Appeals — Tenth Circuit

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 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. Jur. Indemnity §§ 18-19, p. 467; 42 C.J.S., Indemnity § 27(b), page 606; Restatement on Restitution §§ 90-102; Indemnity Between Negligent Tort-feasors: A proposed rationale, 37 Iowa Law Review, Summer 1952, p. 517. Indemnity thus turns on the kind and character, not the comparative degree of negligence which caused the injury. And, it necessarily arises out of an independent legal relationship, under which the indemnitor owes a duty either in contract or tort to the indemnitee apart from the joint duty they owe to the injured party.

The trial court recognized the exception to the general rule, but upon a careful study of the pleadings was unable to find any valid basis for distinguishing the kind and character of negligence charged against Peak and Halliburton. It took the view that the allegations of negligence in both the first and third-party complaints implied primary and active negligence. It construed the first-party complaint to assert "a claim against Peak by virtue of the negligent manner in which one of Peak's servants operated certain machinery", and the third-party complaint as alleging that "Halliburton was guilty of negligence in furnishing defective `tools, machinery and equipment' for the job in question and in supplying workmen who discharged their duties negligently and not in conformity with accepted methods of operation." From this, the court reasoned that Peak could not assert that it was being held constructively liable for negligent acts committed by Halliburton's servants, or that its negligence varied in character and gravity from the alleged negligence of Halliburton. Calvery v. Peak Drilling Co., supra, 118 F.Supp. at page 338.

We agree with the trial court that both the original and the third-party complaint allege a cause of active and positive negligence against each defendant. Calvery alleged that Peak was negligent in the operation of the machinery, Peak alleged that Halliburton was negligent in furnishing tools or inefficient workmen, either one or all of which could have caused the injury. In this posture of the case, there can be no actionable difference in the quality of negligence. Peak alleged a contract implied by law as grounds for indemnity, but the pleadings do not allege an independent legal relationship from which a contract can be implied. Indeed, they do not create any legal relationship from which a duty arises from Halliburton to Peak. Both Peak and Halliburton were independent contractors to Sinclair, there was no contractual relationship between them. Of course each owed the other the duty to exercise ordinary care, but...