Roberts v. Barclay

• Decision Date: 13 February 1962
• Docket Number: No. 39344,39344
• Citation: 1962 OK 38,369 P.2d 808
• Parties: Kenneth Dewan ROBERTS, Plaintiff in Error, v. Frank S. BARCLAY, d/b/a Frank Barclay Company and Kenneth E. Beck d/b/a Beck Construction Company, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 808

369 P.2d 808

1962 OK 38

Kenneth Dewan ROBERTS, Plaintiff in Error, v. Frank S. BARCLAY, d/b/a Frank Barclay Company and Kenneth E Beck d/b/a Beck Construction Company, Defendants in Error.

No. 39344.

Supreme Court of Oklahoma.

Feb. 13, 1962.

Syllabus by the Court.

Where plaintiff is not entitled as a matter of law to recover under the facts alleged in the petition, a demurrer thereto is properly sustained.

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

Action by plaintiff Roberts against defendants Barclay and Beck, for damages for personal injuries resulting from a fall which occurred in the course of plaintiff's employment by defendant Barclay. From a judgment for defendants after defendants' demurrers to plaintiff's petition were sustained, plaintiff appeals. Affirmed.

Finch & Finch, Sapulpa, Rucker, Tabor, Best, Sharp & Shepherd, Joseph A. Sharp, O. H. 'Pat' O'Neal, Tulsa, for plaintiff in error.

Hudson, Hudson, Wheaton & Kyle, Tulsa, for defendants in error.

JACKSON, Justice.

In the court below, plaintiff Roberts sued defendants Barclay and Beck, who were sub-contractor and general contractor respectively upon a construction project in Tulsa, for damages resulting from a fall from a scaffold, which occurred in the course of plaintiff's employment with defendant Barclay.

Defendants filed demurrers to the petition which were sustained by the trial court for the reason that the court had no jurisdiction. It was the opinion of the court that the subject matter of this action was within the exclusive purview of the Workmen's Compensation Law of Oklahoma.

Plaintiff appeals, and here argues the single proposition that the court erred in sustaining the demurrers. Plaintiff says that the sole issue before this court is 'May a plaintiff who has been wilfully injured by his employer bring this common law action or is his remedy within the jurisdiction of the State Industrial Court?'

Since our Workmen's Compensation Law by its terms applies only to disability or death resulting from accidentai injuries (85 O.S.1951 § 3(7), it may be conceded that an employee who has been wilfully injured by his employer has a common law action for damages. See paragraph 10 of the syllabus in Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938.

Since a demurrer has the effect of testing the sufficiency of the pleading against which it is directed, the real question before this court is whether or not the petition here pleads a cause of action based upon an injury wilfully inflicted by employer upon employee.

The petition alleges that plaintiff was an employee of defendant Barclay, and that on December 18, 1958,

'* * * plaintiff was preparing to paint the corrugated metal covering of the cooling tower which is located above the boiler house at the Hillcrest Medical Center. Plaintiff stood on top of the cooling tower and a scaffold was hoisted up to the top of said tower by two fellow employees. Said scaffold was approximately twenty feet long and supported by two lookout beams approximately eighteen to twenty feet in length. Each lookout beam was held by a five gallon bucket of sand. When the scaffold reached the top of the tower, plaintiff stepped on the east side, tied the ropes off and started walking along the scaffold toward the west side. As he reached for the ropes on the west side, the rope holding the west end came loose from the lookout beam and the whole west side of the scaffold, ropes, cables, pulleys and scaffolding crashed down in a swinging manner throwing plaintiff some twenty feet to the top of the concrete roof of the boiler house thereby sustaining severe, crippling, disabling and permanent injuries that will be set out in detail hereinafter.'

The petition then alleges that plaintiff's damages were 'wilfully and knowingly' caused by the negligence of defendants. Seven different allegations of negligence by Barclay are then set out, each one including the phrase 'wilfully and knowingly'. Five allegations of negligence are leveled at defendant Beck, three of which include the phrase 'wilfully and knowingly.'

The petition also sets out at length the provisions of 40 O.S.1951 § 174, and refers to 40 O.S.1951 §§ 177 and 178. These sections are known as the 'Oklahoma Scaffold Act'.

Nowhere in the petition does plaintiff say directly that he was 'wilfully injured' by his employer, and nowhere does he state facts giving rise to such an inference.

The liberal use of the phrase 'wilfully and knowingly' in the petition added nothing to the facts as alleged in the quoted portion set out above. Such constituted a mere characterization of the acts or omissions of the defendants concerned. The rule regarding such characterizations is set out in 71 C.J.S. Pleading § 19, as follows:

'In general, expressions used to characterize acts or conduct, without support by a statement of the facts, are mere conclusions of law or expressions of opinion.'

The statement of facts in the petition does not support the proposition that plaintiff was wilfully injured by his employer.

In Root Grain Co. v. Livengood, 151 Kan. 706, 100 P.2d 714, the Supreme Court of Kansas said with regard to certain descriptive terms:

'At the outset, we must repeat an observation this court is frequently required to make, which is that a liberal use of acerbic adjectives and adverbs does not serve to strengthen the facts alleged to plead a cause of action or defense. * * *'

Under the statement of facts contained in the...