Error is assigned upon the action of the trial court in overruling defendant's motion for a new trial. Several specifications of error arise under this assignment, but in the view taken of the case here it will only be necessary to discuss those numbered 5 and 7, which read as follows:
"5. Said court erred in refusing and ruling out competent and legal evidence on the part of the plaintiff in error.
"7. Said court erred in giving the following instructions to the jury, to wit: Instructions 4, 5, and 6."
Plaintiff alleged and proved a failure on the part of defendant to provide compensation for injured employes under either of the four plans provided for by Comp. Stat. 1921, sec. 7308, and on this based his election to proceed by common law action for damages as authorized by Comp. Stat. 1921, sec. 7286. Under this latter section the advantage accruing to the injured employe and the disadvantage militating against the employer is the elimination of defenses under either of the three doctrines of fellow servant, contributory negligence, or assumption of risk. Merrick Coe v. Modlin et al.,88 Okla. 83, 211 P. 510; Whiteneck v. Board of Com'rs of Woods Co.,89 Okla. 52, 213 P. 865. The character and quantum of proof necessary to establish defendant's liability for negligence and plaintiff's right to recover are in no way changed. Plaintiff must establish *Page 183 the three essential elements of actionable negligence, viz.: (a) A duty owing by defendant to plaintiff, (b) a failure of defendant to perform that duty, and, (c) injury resulting to plaintiff proximately from such failure. It is only in proceedings for compensation under the Workmen's Compensation Law that the injured employe is relieved from the necessity of establishing actionable negligence. This distinction is succintly stated in Lewis, etc., County v. Ind. Acc. Board (Mont.) 155 P. 268, thus:
"The fundamental difference between the conception of liability and compensation is found in the presence in the one, and the absence from the other, of the element of actionable wrong."
Justice Kane made the same distinction clear in Stasmos v. State Industrial Commission et al., 80 Okla. 221, 195 P. 762, thus:
"The test of liability under the Workmen's Compensation Law for injuries arising out of and in the course of employment is not the master's dereliction, whether his own or that of his representatives acting within the scope of their authority, but is the relation of the service to the injury, of the employment to the risk."
The vice of instructions 4 and 5 will be apparent from a mere reading of them in view of the legal principles above stated. The court's charge to the jury consisted of instructions 1 to 7, inclusive. Instruction 1 stated the substance of the pleadings. Number 2 fixed the burden of proof and defined preponderance of evidence. Number 3 made the jurors sole judges of the credibility of the witnesses and of the weight of the evidence. Instruction 6 defined the measure of damages if plaintiff should recover, while instruction 7 authorized a verdict by not less than nine jurors. Instructions 4 and 5 read:
"4. In this case, gentlemen, you are instructed that the plaintiff would not be entitled to recover in this case, unless you believe from the evidence that he was an employe of the defendant at the time of the alleged injury and in this connection you are instructed that an employe means any person engaged in any mechanical or manual work in the employment of another person, firm or corporation and, unless you believe from the evidence in this case that the plaintiff, at the time of the alleged injury, was employed by and under the direction of and control of the defendant, your verdict should be for the defendant. And in this connection you are further instructed that if the plaintiff was employed by and working under the directions of the agents, or employes of the defendants, as a necessary and proper laborer on the work that that would constitute him an employe.
"5. You are further instructed, gentlemen, that should you find by a preponderance of the evidence on the part of the plaintiff that he was an employe of the defendant at the time he received the injuries complained of, that the only further question for your consideration would be the extent of his injuries and the amount of damages which he is entitled to recover. On the other hand, gentlemen of the jury, you are instructed, should you find from all the facts and circumstances in evidence that plaintiff was not in the employ of the defendant, you should find for the defendant."
By instruction 4 the jury is authorized to find in favor of the plaintiff upon being satisfied from a preponderance of the evidence that plaintiff was an employe of defendant, as employe is therein defined, without any proof of primary negligence on the part of defendant. Instruction 5 makes the vice of instruction 4 more apparent and prejudicial by telling the jury that if it should find the plaintiff to have been an employe of defendant at the time he was injured, then the only thing left for consideration would be the extent of the injury and the amount of damage.
These instructions amounted to a directed verdict in favor of plaintiff, leaving only the amount of recovery to be determined by the jury. The words "negligence" or "care" are not used anywhere in any of the seven instructions to the jury. Defendant's duty was nowhere defined. Plaintiff's right to recover was nowhere made to depend on a breach of that duty by defendant. It is evident that the trial court took the view that plaintiff's right to recover was controlled by Comp. Stat. 1921, sec. 7285, but that section only controls in proceedings for compensation. In law actions for damages Comp. Stat. 1921, sec. 7286, applies, and precludes the usual defenses in actions for negligent injury. Merrick Coe v. Modlin et al., supra; Whiteneck v. Board of Com'rs of Woods Co., supra. This is one of the penalties imposed upon employers for failure to provide compensation, but in law actions for damages plaintiff must allege and prove actionable negligence. Dewey Portland Cement Co. v. Blunt, 38 Okla. 182, 132 P. 659; Texas Co. v. Collins,42 Okla. 374, 141 P. 783; Interstate Compress.Co v. Arthur,53 Okla. 212, 155 P. 861; Sulzberger Sons Co. v. Strickland, 60 Okla. 158, 159 P. 833; Ponca City Ice Co. v. Robertson, 67 Okla. 86, 169 P. 1111; Pine Belt Lumber Co. v. Riggs, *Page 184 80 Okla. 28, 193 P. 990. The Instructions complained of were prejudicially erroneous.
Under specification 5 complaint is made of certain rulings of the court in the exclusion of testimony offered on behalf of defendant. An examination of the record discloses that when the witness Differdean, and when the witness Heck were on the stand defendant offered to prove by them that the cat-head and Kelly joint and the other equipment of the defendant in and about its rotary rig was standard equipment such as was recognized and used generally in the oil fields, and that it was as fully safeguarded as was possible for such appliances in and about this character of rig to be safeguarded. To this offer of proof by the witness Differdean the objection interposed was:
"Mr. Brown: We object to that. It wouldn't make a particle of difference."
The objection to a similar offer of proof while the witness Heck was upon the stand was as follows:
"Mr. Brown: We object to that because it is irrelevant, incompetent and immaterial. It is admitted that he did not carry any liability insurance, and therefore is immaterial."
These objections were by the court sustained. The offer to prove was competent and material and was germane upon the question of primary negligence on the part of the defendant alleged by the plaintiff in his petition, and which it was incumbent upon him to establish by a fair preponderance of the evidence. The question of whether the defendant was negligent in furnishing an unsafe place or unsafe appliances for the use of its servants, by reason whereof plaintiff suffered injury was the principal question in the case, and was a question for the determination of the jury under all the proof. Certainly any testimony in behalf of the defendant which tended to disprove negligence on its part was germane and material upon this issue, and its exclusion by the court was prejudicial to the substantial rights of the defendant. The weight of such evidence was solely for the jury, but its competency was a question to be determined by the court, and since such testimony was competent, relevant, and germane, the rulings of the court in excluding it were erroneous.
Another question which may be adverted to briefly is defendant's contention that the court erred in refusing to give its requested instructions numbered 1, 2, 3, and 4. Requested instruction number 1 was for a directed verdict. There was no error in its refusal. Requested instructions 2, 3, and 4 presented in various forms the question of whether plaintiff at the time of the injury was an employe of the defendant. The testimony shows that a man named South was an employe of defendant, and that Reese was the head driller on this particular well. South desired to lay off on this occasion and asked the driller, Reese, if it would be alright for the plaintiff Gregston to substitute for him. When Gregston came to the rig he talked with Reese and informed him that he was going to substitute for South and was directed by Reese to take charge of the cat-head. There is conflict in the testimony as to the authority of Reese to employ and discharge help, but on the entire record there was sufficient testimony to take this question to the jury so that no error was committed by the court in the refusal of these requested instructions.
Because of the errors of the court heretofore pointed out in its instructions numbered 4 and 5, and in its rulings on the evidence offered by the defendant, which are deemed to be prejudicial to the substantial rights of the defendant, this cause should be reversed and remanded, with directions to the trial court to grant the defendant a new trial herein.
By the Court: It is so ordered.