Wright v. Cane Run Petroleum Co.

• Decision Date: 17 December 1935
• Citation: 262 Ky. 251,90 S.W.2d 36
• Parties: WRIGHT et al. v. CANE RUN PETROLEUM CO.
• Court: Kentucky Court of Appeals

90 S.W.2d 36

262 Ky. 251

WRIGHT et al. v. CANE RUN PETROLEUM CO.

Court of Appeals of Kentucky

December 17, 1935

Rehearing Denied Feb. 25, 1936.

Appeal from Circuit Court, Daviess County.

Proceedings under the Workmen's Compensation Act by Eunice Wright and others for the death of Harold Wright, opposed by the Cane Run Petroleum Company. An award of compensation in claimants' favor was set aside by the circuit court, and claimants appeal.

Judgment of Circuit Court reversed with directions.

Louis I. Igleheart, of Owensboro, for appellants.

Cary Miller & Kirk, of Owensboro, and Charles Leibson, of Louisville, for appellee.

RICHARDSON Justice.

Harry Brenner owned an oil and gas lease on the land of Howard Wright, situated in Daviess county. The Cane Run Petroleum Company, a domestic corporation, owned an oil and gas lease on Williams' 20 acres, adjoining Howard Wright's. Thomas E. Adams and Herman Brenner, a brother of Harry engaged in business in the firm name of Brenner & Adams. They owned no oil and gas leases, but operated drilling machines and engaged in drilling wells for other persons or corporations. Harold Wright was employed, intermittently, by Brenner & Adams, and performed services for them in their business as drillers. When not in their employment, he was employed by the Cane Run Petroleum Company in the operation of its business. Harry Brenner rented an inferior secondhand drilling machine and tools and used them in drilling an oil well on Howard Wright's, within about 25 or 30 yards of the line between it and Williams' land. Harold Wright, at this well, in the night, was killed on August 9, 1933, by the breaking of parts of the drilling machine, while working as a "tool dresser." The Cane Run Petroleum Company had no pecuniary interest in the drilling of the well, but its completion so near the Williams land was regarded by it, and would serve, as a test well on the Williams land. Therefore to this extent, it was interested in its completion Herman Brenner was president of the Cane Run Petroleum Company, and Thomas E. Adams its secretary. Harry Brenner, on account of his financial condition, the limited number of his employees, and the inadequacy of the drilling machinery, was not speedily and successfully drilling the well. In order to speed up its drilling and to make its completion assured, Herman Brenner, as president of the Cane Run Petroleum Company, went to the home of his brother, Harry, and advised him he would like to send employees over to help him complete it. Harry agreed, and Herman stated to him: "We are going to send two men over there to help finish the well." Harold Wright and Eddie Fairchild, at that time, were in the employment of the Cane Run Petroleum Company. It had previously accepted, and was operating under, the Workmen's Compensation Act (Ky.St. § 4880 et seq.). Harold Wright and Fairchild had signed its compensation register. About three days before Harold was killed, Herman Brenner, the president of the corporation, directed them to go to the Wright lease and help complete the Harry Brenner well. At the time Harold Wright was so directed, he inquired of Herman Brenner who would be his paymaster, and he was assured by Herman Brenner, as president, that the Cane Run Petroleum Company would pay him, if Harry Brenner did not do so. Thereupon he consented to go, and did go, in obedience to the order of the Cane Run Petroleum Company, by and through Herman Brenner. At the time of his death, he was performing the services of a "tool dresser," at the Harry Brenner well, in compliance with the order of the Cane Run Petroleum Corporation, through its president, to go to the Wright land and help complete the well.

At his death, Harold left surviving a widow and two infant children. They made application to the Workmen's Compensation Board for adjusted compensation. Board for adjusted compensation. On the evidence produced before it, it entered an award allowing them compensation for the death of Harold Wright.

Within the time provided by the statute, the Cane Run Petroleum Company filed in the Daviess circuit court a petition for review of the board's proceedings and award. The circuit court's finding of facts on the same evidence substantially was: There was no contrariety in the evidence showing the kind of work in which Harold Wright was engaged at the time he was injured which resulted in his death, on the lease of Harry Brenner, and that the Cane Run Petroleum Company had no interest in either the lease or in the well, or the control and management or supervision of either the lease or the drilling thereon; and that the injury did not arise out of and in the course of his employment as an employee of the Cane Run Petroleum Company. Its conclusion of law was that the Cane Run Petroleum Company was not liable under the Workmen's Compensation Act to Wright's dependents on account of his death. Its decree reversed, set aside, and held for naught the award of the Workmen's Compensation Board.

The Cane Run Petroleum Company now argues that on the facts disclosed by the record herein, the circuit court was correct in holding that it was not responsible for the acts of Harry Brenner or those engaged with Harold Wright in the drilling the well at the time he sustained the injury, resulting in death, and during the entire time he was engaged in his labor at the oil well, he was subject to the orders of Harry Brenner, and in what he did or failed to do, he was acting for him, and that the Cane Run Petroleum Company is not liable for the negligence of Harry Brenner and those engaged with Harold Wright in the drilling of the well, occurring while he and Fairchild were employed in the special services of Harry Brenner and acting solely under his orders and directions.

Also, it contends, the power of control is the test of liability under the maxim respondeat superior. If the master cannot command the alleged servant, then the acts of the latter are not his, and he is not responsible for them. If the principal cannot control and direct the alleged agent, then he is not his agent. The liability of masters for the acts or omissions of their servants weighs heavily on them; but the hardship would be at least equal if the master were not liable; and it would be attended with injustice, too. If the master be morally innocent, so must the injured party be also; and, of two innocent persons, surely he should suffer through whom it is by the employment of another the mischief has been committed.

To sustain its insistence, it cites to us, and with confidence relies upon the principles and the comparable facts in McCoy v. Griffith et al., 196 Ky. 406, 244 S.W....