Ryan-Richards, Inc. v. Whitesides

• Decision Date: 06 May 1938
• Docket Number: No. 1627.,1627.
• Citation: 96 F.2d 826
• Parties: RYAN-RICHARDS, Inc., v. WHITESIDES et al.
• Court: U.S. Court of Appeals — Tenth Circuit

96 F.2d 826 (1938)

RYAN-RICHARDS, Inc., v. WHITESIDES et al.

No. 1627.

Circuit Court of Appeals, Tenth Circuit.

May 6, 1938.

James S. Twyford, of Oklahoma City, Okl. (Solon W. Smith and William J. Crowe, both of Oklahoma City, Okl., on the brief), for appellant.

T. Murray Robinson, of Oklahoma City, Okl. (Leverett Edwards, of Oklahoma City, Okl., and T. M. Robinson, of Altus, Okl., on the brief), for appellee Artie Whitesides.

Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Artie Whitesides as plaintiff instituted this action for herself as widow and as next friend of Edward Richard Whitesides, her minor son by her husband, Major E. Whitesides, deceased, against Ryan-Richards, Incorporated, to recover damages for the alleged negligent killing of her said husband, about 11:30 a. m. on December 21, 1933, at a point on highway 62 about one and one-half miles directly east of Altus, Okl.

By amended petition Percy Meacham became a party defendant.

The parties will be referred to herein in the order in which they appeared in the lower court, and when not so designated will be referred to as follows: The plaintiff as "widow" and the defendants, Ryan-Richards, Incorporated, as "contractor," and Percy T. Meacham, as "truck driver."

The said "contractor" answered, denying each and every allegation except where admitted, and interposed the plea of contributory negligence on the part of said decedent and averred that the injury, if it occurred as alleged, which was by defendants denied, that the party occasioning same was not an agent, servant or employee of said "contractor," but an independent contractor operating his own truck, under no control or supervision of said "contractor," who was in no wise responsible for said negligence and consequent damage.

Plaintiff (the widow) by reply denied all affirmative averments contained in said answer, specifically pleading as to the allegation that the said "truck driver" was an independent contractor, that the "contractor" was then and there operating under a contract with the Highway Commission of the State of Oklahoma, pursuant to section 204 of the National Industrial Recovery Act, 40 U.S.C.A. § 404, which provided:

"For the purpose of providing for emergency construction of public highways and related projects, the President is authorized to make grants to the highway departments of the several States in an amount not less than $400,000,000 to be expended by such departments in accordance with the provisions of the Federal Highway Act, approved November 9, 1921, as amended and supplemented chapter 1 of Title 23, except as provided in this title chapter as follows: * * *

"(c) All contracts involving the expenditure of such grants shall contain provisions establishing minimum rates of wages, to be predetermined by the State highway department, which contractors shall pay to skilled and unskilled labor, and such minimum rates shall be stated in the invitation for bids and shall be included in proposals for bids for the work."

And further averred that certain funds were allotted under the provisions of said act to the State Highway Commission, on account of which the State Highway Commission entered into a contract for certain road improvements on the highways of the State of Oklahoma, containing the following provision:

"No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer or his authorized representative. Requests for permission to sublet, assign or otherwise dispose of any portion of the contract shall be in writing and accompanied by showing that the organization which will perform the work is particularly experienced and equipped for such work. The contractor shall give assurance that the minimum wage for unskilled labor and the maximum amount to be deducted for board, if furnished, as stated in his proposal shall apply to labor performed on all work sublet, assigned or otherwise disposed of in any way. Written consent to sublet, assign or otherwise dispose of any portion of the contract shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract."

A certified copy of said contract was attached as a part of said reply, with the further allegation that neither was application made to the State Highway Commission nor its written consent obtained to sublet or assign or otherwise dispose of any portion of said contract, and that the said defendant, the "contractor," was prohibited by its terms from employing the said "truck driver" as an independent contractor to perform any of the work thereunder, it being further alleged therein that: "Copies of all pay rolls for work performed under this contract (whether done by the contractor or under a sub-contract or otherwise), certified under oath by the contractor or his authorized representative, shall be filed with the engineer, showing the name of each employee, the State and the county of his bona fide residence, the agency from which his name was obtained, whether or not a veteran with dependents, the class of work performed, the hours worked each day, the wage rate paid, the total amount earned and deductions for board, if any"; and that in accordance with said contract, and for the purpose of receiving payments thereon, the said "contractor" made its sworn reports to said Highway Commission, stating that the said "truck driver," who is one and the same person as P. T. Meacham, was an employee of said "contractor," a certified copy of one of said reports so made being attached to said reply and made a part thereof.

Judgment on verdict was for plaintiff, from which this appeal followed.

The deceased, whilst driving a truck on the highway east of Altus, Okl., traveling westward on said highway, and having picked up two hitchhikers, one of whom was blind, but both of whom were in his truck, stopped said truck on the north shoulder of said gravelled and graded highway as far away from the traveled road as practicable. Having gotten out of said truck, he was standing on its south side making repairs on the motor when the said "truck driver" driving a gravel truck, also going west towards Altus, drove up directly behind the Whitesides truck until close to it, then swerved out, and around the said truck, the plainly defined tracks disclosing that the "truck driver's" truck missed the Whitesides truck about a foot and one-half, a line of blood and brains being along its tracks for some distance.

At the time of the accident the two hitchhikers were sitting on the bed of the truck just behind the cab, on the right side, facing north, one of whom, Wiley Giddens, being blind, could not tell how close the "truck driver's" truck came to the deceased's truck. The other. Reginald Rutledge. testified that the Whitesides truck stopped where the accident occurred, pulling out to the right side of the road, he (witness) being on the flat bed facing north, talking to blind Wiley Giddens, whilst Whitesides was working on the motor with the hood up, the motor idling, witness, not hearing "truck driver's" truck but only a noise, looked around and saw Whitesides lying in the road about 35 feet in front of his truck, and the "truck driver's" truck stopped about 500 yards further down the road. The said Reginald Rutledge examined the truck tracks from the "truck driver's" truck back and along past the Whitesides truck, which were 18 or 20 inches from the Whitesides truck, Whitesides' hat lying under same, and thus tracing same from "truck driver's" truck location back past the Whitesides truck, the tracks being 18 inches outside from the Whitesides truck.

Ross Rutherford, the county attorney of said county, testified that on December 21, 1933, he went to the scene of the accident, it being an ordinary clear day — neither wind blowing nor sand flying, on said highway (No. 62), the traveled part of the highway being about 60 feet wide, its entire right of way covering 100 feet, the bar pit being not over a foot deep with gradual slope. The Whitesides truck headed west, the body of the deceased still in the road, he examined and made investigation to find where the truck driven by the "truck driver" had passed with reference to the Whitesides truck, and found that it had come from the east toward the west directly behind the Whitesides truck parked on the north side of the road as close to the bar pit as it could get without being driven into the bar pit, there being room on the left side of the road for two cars driving abreast to pass the Whitesides truck, the "truck driver's" tracks coming directly behind the Whitesides truck, and disclosing that he had traveled behind the Whitesides truck till he got close to it, then swerved out, the plainly defined tracks showing he missed it possibly a foot and one-half or two feet south of the Whitesides truck, and along its track there being a line of brains and blood.

O. R. Jones, undersheriff, going from Altus to the scene of the accident, did not see the "truck driver's" truck when he arrived, no other truck being there except the Whitesides truck. The place where he saw the sign of where the "truck driver's" truck had stopped was about one-fourth mile from the accident, there being only one set of tracks behind the Whitesides truck. He later saw the "truck driver's" truck at Altus. The auxillary gasoline tank on it extended out further than the wheels, 3 to 6 inches past the bed of the truck, with a clot of brains hanging on it. The road was straight where the accident occurred and a parked truck could have been seen practically as far as the vision of the eye could extend.

Ernest Hathaway, a deputy sheriff for seven years and such on December 21, 1933, went to the scene of the accident and made an investigation of tracks and observed a heavy set of tracks coming from the east on the north side of the road, and as these...