Tankersley v. Webster

• Decision Date: 16 June 1925
• Docket Number: Case Number: 15397
• Citation: 116 Okla. 208,243 P. 745,1925 OK 520
• Parties: TANKERSLEY v. WEBSTER.
• Court: Oklahoma Supreme Court

1925 OK 520

243 P. 745

116 Okla. 208

TANKERSLEY v. WEBSTER.

Case Number: 15397

Supreme Court of Oklahoma

Decided: June 16, 1925

Syllabus

¶0 1. Master and Servant--"Independent Contractor."

An independent contractor is one who exercises an independent employment, contracts to do a piece of work according to his own method and without being subject to the control of his employer except as to the result of the work.

2. Same--Question for Court Where Employment Contract in Writing.

Where a contract of employment is in writing, it is the duty of the court to construe the contract and determine as a matter of law whether the relation created is that of employer and independent contractor or of master and servant.

3. Same--Nonliability for Negligence of Independent Contractor--Injuries from Explosives.

One who employs another to do a specific job, or piece of work, as an independent contractor, is not liable for injuries caused by the negligence of such contractor or his servants, unless the ordinary and proper mode of doing the work necessarily or naturally results in producing the injury complained of. Held, that when the injury complained of was the result of an explosion of a dynamite cap, found by plaintiff about the premises where the work of excavation was being done by the independent contractor, negligently left by the servants or employes of such contractor, the employer of the independent contractor was not liable.

4. Appeal and Error--Improper Argument--Right to New Trial.

Where counsel in argument to the jury makes a statement of a material fact, not in evidence, or makes any statement outside the record, calculated to prejudice the jury, over the objection of his adversary, he violates the right of a fair trial, and if the party aggrieved can show that any injury or substantial injustice has resulted thereby, or if the court believe that it is probable that the conduct complained of has resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, a new trial should be granted, but such conduct under the law of this jurisdiction does not entitle the party aggrieved to a new trial as a matter of right.

Commissioners' Opinion, Division No. 3.

Error from District Court, Creek County; James Hepburn, Judge.

Action by Joe Webster, by J. P. Pearson, next friend, against Dan Tankersley. Judgment for plaintiff, and defendant brings error. Reversed and rendered.

A. F. Moss, L. G. Owen, and J. C. Farmer, for plaintiff in error.

Creekmore Wallace, for defendant in error.

JONES, C.

¶1 This action was instituted in the district court of Creek county, Okla., by the defendant in error, as plaintiff, against the plaintiff in error, as defendant, in the trial court, wherein the plaintiff, Joe Webster, by his next friend, sought to recover damages for an injury sustained by the said Joe Webster and alleged to be the result of the carelessness and negligence of the defendant, Dan Tankersley. The defendant in his answer sets up a general denial, and further avers that the injury and negligence complained of, if any, were chargeable to the negligence of Joe Casey, who was an independent contractor. The facts alleged, and as disclosed by the record, show that the defendant, Dan Tankersley, as a contractor, had entered into a contract with the school board of Sapulpa to erect an addition to the school building, and that Tankersley had entered into a written contract with Joe Casey to do the excavating necessary in the erection and construction of said building, as follows:

"This agreement made this day above written by and between Dan Tankersley and Joe Casey, both of Sapulpa, Creek county, Okla.

"The said Joe Casey hereby agrees to do all of the cellar or basement excavation to be done in connection with the erection of the new junior high school building for the board of education of Sapulpa, Okla., all in accordance to the dimensions of the exterior wall lines and to a depth of four feet one inch from bottom of basement sill lines, all as dimensions as shown by drawings as prepared by Jewell Hicks, architect for said building.

"The said Joe Casey to do all the excavation and to remove all the excavated earth, concrete, debris, etc., from the premises caused by this work.

"For in consideration of the faithful performance of said work, the said Dan Tankersley agrees to pay to said Joe Casey the sum of $ 1,000 upon completion of the work and acceptance by said architect; no footing trenches included."

¶2 And this contract is the only evidence offered worthy of consideration which tends to show the relationship existing between Tankersley and Casey. One of the witnesses, an employe of Casey's, testified that Tankersley was frequently about the building, and engaged in conversation with Casey during the excavation work, but the evidence does not show the frequency of his visits nor the character of the conversation had between the defendant, Tankersley, and Joe Casey. It will be noted from the contract that Casey was to do the excavation work for a consideration of $ 1,000; that the excavation was to be done in accordance with the plans and specifications prepared by Jewell Hicks, the architect, evidently the employe of the school board; and that the consideration was to be paid to the said Joe Casey upon completion of the work, and acceptance of same by said architect, Jewell Hicks. There is nothing contained in the contract from which might be inferred that the defendant, Tankersley, reserved any right or authority to exercise any control in any manner over Casey in the work of excavation, and we think this clearly constitutes the said Joe Casey an independent contractor.

¶3 The injury complained of by the plaintiff, Joe Webster, was the result of an explosion of a dynamite cap. The facts, as disclosed by the record, in this particular, show that the contractor, Casey, in making the excavation, used some dynamite caps to blow up some old foundations and walks, encountered in making the excavation, and that someone, the evidence does not disclose who, left some of the dynamite caps on or about the premises, and Joe Webster, together with some other boys, found a number of the caps, and the plaintiff, Webster, picked up one of the caps, and carried same in his pocket for two or three days, and at the time the injury occurred was attempting to melt with a lighted match some lead attached to and constituting a part of the cap, which caused the explosion, resulting in seriously injuring the plaintiff's hand.

¶4 Upon the trial of the case to the court and jury a verdict was rendered for the plaintiff in the sum of $ 3,000, motion for new trial was filed and overruled, and judgment rendered in conformity to the verdict of the jury, from which order and judgment the appellant prosecutes this appeal, and assigns numerous specifications of error, but rests his right to a reversal of this judgment upon two grounds: First, that the said Joe Casey was an independent contractor; and, second, that counsel for plaintiff was guilty of misconduct which necessitates a reversal of this case by reason of having made certain statements in his opening argument to the jury.

¶5 As heretofore stated, we are of the opinion that the said Joe Casey was an independent contractor. In the case of Producers' Lumber Co. et al. v. Butler et al., 87 Okla. 172, 209 P. 738, this court defines an independent contractor as follows:

"An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own method and without being subject to the control of his employer except as to the result of the work"

--following the rule announced in Chicago, Rock Island & Pacific Ry. Co. v. Bennett, 36 Okla. 358, 128 P. 705; C., R. I. & P. Ry. v. Baum, 47 Okla. 161, 148 P. 103. In the case of C., R. I. & P. Ry. Co. v. Bennett, supra, this court announces the following rule:

"That the test is not whether the defendant did in fact control and direct plaintiff in his work, but is whether it had the right under the contract of employment, taking into account the circumstances and situation of the parties, and the work, to so control and direct him in the work."

¶6 In the case at bar, under the terms of the contract, no right or authority was reserved on the part of the defendant, Tankersley, to supervise or control the work or direct the contractor, Casey, in anywise in the discharge of the work. His work, under the terms of the contract, was to be done according to the plans and specifications of the architect, Hicks, and was to be paid for, subject to the approval and acceptance of same by the architect, and there is no evidence of any character tending to show that Tankersley exercised any control or supervision or gave any directions concerning the work of excavation.

¶7 The plaintiff's reply was not verified and the contract of employment between Tankersley and Casey was admitted in evidence without objections, and we think conclusively shows that Casey was an independent contractor. This brings us to the question of whether or not this is a question to be determined by the jury as a matter of fact or is it a question of law for the determination of the court. This court has passed upon this question in the case of Gulf Coast & Santa Fe Ry. Co. v. Beasley, 67 Okla. 27, 168 P. 200, as follows:

"Where a contract is in writing, or the terms thereof are undisputed, even though resting in parol, or if but one inference can be drawn from the evidence, it is the duty of the court to construe the contract and determine as a matter of law whether the relation is that of employer and independent contractor, or master and servant." See Taylor on Evidence, sec. 43; Greenleaf, Evidence, sec. 227.

¶8 This rule has been substantially followed in a later case, that of Producers' Lumber Company v. Butler, 87 Okla. 172, 209 P. 738.

¶9 At the close of the evidence in the case at bar ...