Rucker Co. v. M & P Drilling Co.

• Decision Date: 09 November 1982
• Docket Number: No. 53595,53595
• Parties: The RUCKER COMPANY, A corporation, Appellant, v. M & P DRILLING COMPANY, Dalco Power Company, Inc., and Dresser Industries, Inc., Appellees.
• Court: Oklahoma Supreme Court

Page 1239

653 P.2d 1239

1982 OK 131

The RUCKER COMPANY, A corporation, Appellant, v. M & P DRILLING COMPANY, Dalco Power Company, Inc., and Dresser Industries, Inc., Appellees.

No. 53595.

Supreme Court of Oklahoma.

Nov. 9, 1982.

Appeal from the District Court of Oklahoma County, Charles Owens, trial judge.

After receiving a Workers' Compensation settlement from his employer, third-party defendant (M & P Drilling Co.), plaintiff sought relief from defendant and third-party plaintiff Rucker-Acme Tool Company (Supplier). Supplier filed cross-petition against M & P Drilling Co. alleging that if Supplier is found liable, Supplier is entitled to indemnity from M & P on passive-active liability theory and as a result of a written indemnity agreement. District Court sustained M & P's general demurrer to cross-petition. Supplier appeals.

REVERSED AND REMANDED.

Deryl Lee Gotcher, Graydon Dean Luthey, Jr., Jones, Givens, Gotcher, Doyle & Bogan, Inc., Tulsa, for appellant.

Page Dobson, Rhodes, Hieronymus, Holloway & Wilson, Oklahoma City, for appellees, M & P Drilling Co.

LAVENDER, Justice:

After receiving a Workers' Compensation settlement from his employer, third-party defendant (M & P Drilling Co.), plaintiff sought relief from defendant and third-party plaintiff, Rucker-Acme Tool Company (Supplier). Supplier filed a cross-petition against M & P Drilling Co. alleging that if Supplier is found liable, Supplier is entitled to indemnity from M & P Drilling Co. because: (1) It was the active negligence of M & P Drilling Co., plaintiff's employer, which was the proximate cause of plaintiff's injuries, whereas the Supplier's negligence, if any, was passive and Rucker's liability was at most only vicarious; (2) the written agreement between Supplier and M & P Drilling Co. is one of indemnity against the claims of the plaintiff requiring M & P to indemnify the Supplier for any recovery by plaintiff on plaintiff's claims against Supplier.

M & P filed a general demurrer to Supplier's cross-petition, claiming that the same is barred by the provisions of the Workers' Compensation Act (85 O.S.1981, § 12). The district court sustained the demurrer. Supplier appeals.

On July 24, 1975, plaintiff, member of a drilling crew and employee of M & P Drilling Co., was injured during a fishing operation for the recovery of lost or damaged drilling equipment and pipe in a well being drilled by M & P Drilling Company. The "spider and slips" alleged to be instrumental in producing plaintiff's injuries were owned by Supplier and leased to M & P Drilling Co. under a contract in writing which states in pertinent part:

"All tools are rented, repaired, manufactured and sold under the express understanding that the use of said tools by any person, firm, or corporation whomsoever, is entirely at the risk of said user, and in renting, repairing, manufacturing, or selling said tools or equipment, Rucker Acme Tool assumes no liability of any kind or character for any damage to any well, property, or person from the use of said tools whether caused by the manner of the use of said tools, defect of the materials--whether latent or patent, workmanship, assembling or otherwise. * * * we do not guarantee them in any respect whatsoever, and they are used entirely at the risk of the renter or purchaser--whether or not operated under our supervision. Rucker Acme Tool shall not be responsible for any loss, damage, or injury including death or like or different casualty to persons (whether they be third persons, the purchaser, or its employees) and to the property (whether it be that of the purchaser or its employees or third persons) by reason of any damage from any such equipment or any part thereof or by reason of any defects in the construction or installation of such equipment or by reason of the placing, erecting, falling, or dislocation of such equipment or any part thereof or by reason of any casualty whether due to the negligence of Rucker Acme Tool or otherwise." (Emphasis added.)

In examining the sufficiency of a petition, Oklahoma courts are required to construe pleadings liberally "with a view to substantial justice between the parties." ¹ Thus, if the defendant demurs to a petition, the petition should be liberally construed on appeal regardless of whether the demurrer was overruled or sustained below. ² If a cause of action is properly alleged in the petition, a demurrer cannot be sustained and must be overruled and the cases are legion.

85 O.S.1981, § 12 insofar as pertinent provides:

"The liability prescribed in the last preceding section (employers' duty to pay Workman's Compensation) shall be exclusive and in place of all other liability of the employer and any of his employees, at common law or otherwise, for such injury, loss of services or death, to any employee, spouse, personal representative, parents, dependents or any other person, * * *."

The so-called passive-active theory of ultimate tort liability was recognized by this Court with approval in Porter v. Norton-Stuart Pointiac-Cadillac of Enid, ³ wherein we adopted the rule as summarized in 27 Am.Jur. Indemnity, § 18 as follows (p. 113):

"* * * one constructively liable for a tort is generally held entitled to indemnity from the actual wrongdoer, regardless of whether liability is imposed on the person seeking indemnity by statute or by rule of the common law, and irrespective of the existence of an express contract to indemnify. Accordingly, it has been stated that a person who, without fault on his own part, has been compelled to pay damages occasioned by the primary negligence of another is entitled to indemnity from the latter, whether contractual relations exist between them or not."

We will first consider whether the active-passive rule thus enunciated can be applied to the case at bar in view of the provisions of 85 O.S.1981, § 12, supra. At the outset, it is observed that the courts generally are sharply divided on this issue. ⁴

In Harter Concrete Products, Inc. v. Harris, ⁵ we held, referring with...