Phoenix Indem. Co. v. Barton Torpedo Co.
| Citation | 137 Kan. 92,19 P.2d 739 |
| Decision Date | 11 March 1933 |
| Docket Number | 30915. |
| Parties | PH×NIX INDEMNITY CO. v. BARTON TORPEDO CO. et al. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
Contract whereby petroleum company hired individual to drill oil well held to create relationship of "principal contractor" and "subcontractor," as regards company's liability for compensation to individual's injured employee (Rev. St. Supp. 1931, 44--503).
Principal contractor liable for compensation awarded to subcontractor's injured workman held not liable in tort for negligently causing injury, though principal contractor has not been adjudged to pay any portion of compensation award (Rev. St. Supp. 1931, 44--503, 44--504).
1. Where a petroleum company contracts with an individual to drill an oil well, furnishing him the drilling rig, casing and other equipment and reserving the right to take full charge of the well and the operation thereat and to manage and control the drilling into, shooting, and testing the sand when oil bearing sand is reached by the driller and requiring the driller to procure an insurance contract under the Workmen's Compensation Law to protect the petroleum company against any right of action, the relation of such parties is respectively that of principal contractor and subcontractor, as distinguished and defined in R. S. 1931 Supp. 44--503.
2. One who is a principal contractor under the distinctions outlined in R. S. 1931 Supp. 44--503 of the Workmen's Compensation Law and liable under certain conditions prescribed in that section for compensation awarded to an injured workman of a subcontractor, is not liable in tort for damages on account of the negligence causing that injury, even though such principal contractor has not been adjudged to pay any portion of such compensation award.
Appeal from District Court, Greenwood County; George J. Benson Judge.
Action by the Ph nix Indemnity Company against the Barton Torpedo Company and the Shell Petroleum Corporation and others. From an adverse judgment, the Shell Petroleum Corporation appeals.
Judgment reversed, and cause remanded with directions.
Paul J Wall, Carl I. Winsor, and John E. Boyer, all of Wichita, for appellant.
J. B. McKay, of El Dorado, and A. B. Mitchell, of Lawrence, for appellee.
This is an action in tort by an insurance carrier having been theretofore adjudged in a workmen's compensation case to pay the dependents of a deceased workman a definite award, to recover on its behalf and on behalf of the dependents damages from third parties for their negligence which caused the death of the workman. The demurrers of the defendants to the petition were overruled. A plea in abatement filed by one of the defendants, the Shell Petroleum Corporation, was also overruled. This defendant appeals alleging error in both these rulings.
The petition alleged that plaintiff was an insurance carrier and had executed and delivered to one W. H. Schwartz a policy insuring him against liability under the Workmen's Compensation Law; that Schwartz had by written contract with the Shell Petroleum Corporation engaged to drill a certain oil well in Greenwood county, Kan., the company "to furnish the drilling rig, casing, fuel and water, and that when said well reached the oil bearing sand said Schwartz should shut down, notify Shell Petroleum Corporation thereof and that it should thereupon take full charge of the well and of the operation thereat, and direct, manage and control the drilling into, shooting and testing of the sand and placing the well on the pump, paying said Schwartz for the use of his tools and drilling equipment and of the workmen employed by him for all time so spent the sum of $80.00 per day of twenty-four hours"; that when oil bearing sand was reached by Schwartz, on March 19, 1929, the petroleum company took full charge of the well, tools, and equipment, and managed, controlled, and supervised the completion of the well including drilling into and shooting the oil bearing sand; that it employed the Barton Torpedo Company to shoot the well with an explosive, and the defendant Pearl Blair represented the torpedo company and he acted jointly with the Petroleum representatives, Bickle and Lingo, in lowering the container, and then they fastened the reel to the fly wheel of the engine used in the drilling for the purpose of withdrawing the torpedo line from the hole; that Logan Herbert, the tool dresser in the employ of Schwartz, was directed by those in charge to start the engine, and when he did so the reel came loose from the fly wheel and struck him, inflicting a serious wound from which he died.
The petition gives details of negligence, names the dependents, specifies the award of the compensation commissioner as $4,350 against Schwartz and plaintiff insurance company, which the latter is regularly paying, attaches a copy of the award, and prays for a judgment of $10,000 for the benefit of itself and the dependents, as their interests may appear.
A general demurrer to this petition was overruled and then the petroleum company filed a plea in abatement, attaching a copy of the contract between the petroleum company and Schwartz, calling special attention to the part of that contract which obligated Schwartz to procure an insurance contract under the Workmen's Compensation Law and that no right of action was given such insurance carrier against the petroleum company. The plea further alleged that the petroleum company, Schwartz, and Herbert were all operating under the Workmen's Compensation Law at the time of the accident. The errors assigned by the appellant are in overruling the demurrer and the plea in abatement.
The difficulty and confusion which has arisen in the case is in the apparent shifting of position by the Shell Petroleum Corporation since the writing of the contract between that company and Schwartz. The contract on its face is unmistakably designed to eliminate the company from liability under the Workmen's Compensation Law. Throughout the entire contract the company is regularly and frequently referred to as the "owner," and Schwartz as the "contractor." The attitude of the appellant in the demurrer, the plea in abatement, and the brief, presented here on review, is not upon the theory of appellant being the owner, but as being the principal contractor and Schwartz, the subcontractor.
The principal contractor and the subcontractor can both be made liable under the Workmen's Compensation Law, while an owner generally speaking is not liable under that law. R. S. 1931 Supp. 44--503 in the first paragraph (a) makes such principal contractor liable to the workman employed by the subcontractor as if employed immediately by him.
Doubtless the trial court in overruling the demurrer and the plea in abatement regarded the contract as one between an owner and contractor, as it especially emphasized the former. However it enumerates privileges and...
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