assuming that employer violated six- foot prohibition when its employees climbed on top of truck in order to attempt to remove overhead power line that had become snagged on truck
How later courts described this case
- assuming that employer violated six- foot prohibition when its employees climbed on top of truck in order to attempt to remove overhead power line that had become snagged on truck
- noting that “[sjubro-gation is an equitable principle”
- “An action to enforce indemnity from liability accrues when the event for which indemnity is due occurs, while a cause of action for indemnity from loss does not arise until the loss is paid.”
Written by the judges who cited it.
The opinion
ALMA WILSON, Justice,
dissenting:
The opinion of the majority presupposes that that portion of 63 O.S. 1981 § 984 which purports to grant a special right of “indemnity” to owners and operators of high voltage lines is constitutional. It is not.
The relevant portion states:
. [I]f such violation [i.e. coming within six (6) feet of any high voltage overhead electrical line or conductor] results in physical or electrical contact with any overhead high voltage line or conductor, the person, firm, corporation, or association violating the provisions of this act, shall be liable to the owner or operator of such high voltage line or conductor for all damage to such facilities and for all liability incurred by such owner or operator as a result of any such accidental contact.” [Emphasis mine.]
The above portion of 63 O.S. 1981 § 984, on its face, violates the Constitution of this State at Okla. Const., Art. 23, § 6.
Consequently, it is unnecessary for this Court to decide whether or not the unconstitutional portion of the statute extends to liability imposed under the Workers’ Compensation Act; and is likewise unnecessary to decide whether or not the purported indemnity cause of action created by the unconstitutional provision is time barred. This is because any action which is granted *558 through an unconstitutional act of the legislative branch is void and without effect from its inception.
The above portion of 63 O.S. 1981 § 984 purports to prescribe that any person coming within six (6) feet of any electrical line or conductor assumes the risk as a matter of law for all liability incurred by an owner or operator as a result of physical contact. This legislative prescription is plainly in derogation of Article 23, Section 6 of the Oklahoma Constitution:
“The defense of contributory negligence or of assumption of the risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.”
Thus, such owners and operators as here under consideration, cannot constitutionally be relieved of the legal burden to defensively prove, as a matter of fact, whether or not an injured/electroeuted person (or his principle) truly assumed the risk of liability for physical contact with high voltage lines or conductors. Our State Constitution at Article 23, Section 6, supra, prohibits the legislative preclusion of assumption of the risk as anything other than a question of fact. It cannot be summarily deemed a matter of law. In this respect, the challenged portion of 63 O.S. 1981 , § 984 is patently unconstitutional on its face, for it dictates, as a matter of law, that any person coming within six (6) feet of an overhead high voltage line or conductor assumes the risk of liability to the owner or operator (and therefore assumes the risk of physical injury or electrocution) regardless of the particular facts and circumstances or the operator/owner’s own negligence.
In the present case, even though it is established that the owner and/or operator of the electrical line did not maintain its line at the legal height at the time of Mr. Woodall’s injury, the statute under consideration here would still deem Mr. Woodall and/or his employer totally liable to the owner/operator, meaning that Mr. Woodall and/or his employer assumed the risk of total liability for coming within six feet of the line, regardless of the owner/operator’s own negligence which may have concurred and contributed to the injury/electrocution. This situation serves to illustrate the wisdom of our constitutional founders in enacting Article 23, Section 6 of our State Constitution, wherein questions concerning contributory negligence and assumption of the risk are “in all cases whatsoever■” questions of fact to be determined by a jury, and not by legislative dictate. Accordingly, I would hold the heretofore quoted portion of 63 O.S. 1981 , § 984 unconstitutional, and therefore without effect.