Brown v. Arrington Const. Co.

262 P.2d 789, 74 Idaho 338, 1953 Ida. LEXIS 291

• Court: Idaho Supreme Court
• Decided: October 30, 1953
• Docket: 7992
• Status: Published

Opinions

PORTER, Chief Justice.

Respondents brought this action to recover damages for personal injuries suffered by respondent, Jesse Brown. By their complaint, respondents alleged that such injuries were the result of shock and burns from an electric current which came in contact with Brown through the negligence of appellant. At the close of the presentation of all the evidence at the trial, appellant moved for a directed verdict which motion was denied by the court. The jury brought in a verdict against appellant in the sum of $5,000. Appellant made a motion for judgment notwithstanding the verdict which motion was denied by the court. Appellant has now appealed to this court from the judgment entered on the verdict of the jury.

About four miles south of Idaho Falls in Bonneville County is located Cotton Siding on the Union Pacific Railroad. Approximately one mile east of Cotton Siding, on what is known as Cotton Road, there is a bridge across the Idaho Canal. In April, 1950, appellant had a verbal contract with Bonneville County to construct a new bridge across this canal. Bonneville County had torn down the old bridge and dynamited the abutments, but had no ready way of removing the debris. The county arranged with appellant for the removal of such debris by a mobile dragline and operator furnished by appellant.

On the morning of April 21, 1950, defendant, Cecil Skinner, as operator, took the mobile dragline or crane to the site of the old bridge. He was there told by employees of the county to remove such debris by the use of his dragline; and that the heavy debris was to be loaded into trucks and the lighter debris piled for future use.

Along the south side of Cotton Road runs an electrical transmission line 28 feet in height and carrying 7,200 volts of electricity. Defendant Skinner located his drag-line with its 40-foot boom on the south side of the road and on the east side of the canal and under the power line. The mobile dragline, due to insulation, was not dangerous to the operator from contact with the high voltage transmission line, but any such contact was dangerous to others on the ground. Skinner warned his oiler and some of the county employees, but not respondent Brown of such danger. The dragline came in contact with the transmission line on several occasions while the work was progressing and Skinner was dissatisfied with having to work in such a dangerous position with a 40-foot boom.

On April 22, 1950, the county sent respondent Brown with a road grader to build a detour around the bridge site so that the flow of traffic would be uninterrupted during the construction operations. He had some conversation with Skinner concerning the piling of the debris.' About noon on April 22, Brown completed the construction of the detour, drove his machine a short way east along the highway and then on foot approached the dragline. According to the testimony of Brown the dragline was not in operation and the bucket was on the ground when he approached. He knew that it was dangerous to approach the dragline when it was in operation under the power line. He had a short talk with Skinner about the removal of some dirt and then started to leave the dragline. As he started to leave, Skinner put the dragline in operation and moved the bucket. Brown saw a corner of the dragline suddenly seem to be afire. He did not knowingly touch the dragline. Brown was knocked unconscious and thrown to the ground. He received burns and severe shock. In conflict with Brown’s testimony, Skinner testified that he was operating the dragline as Brown approached and did not see Brown approaching until the accident, and did not talk with Brown immediately prior thereto,

Appellant makes seven assignments of error with subdivisions, but sets out four general issues in the form of questions upon which it relies and which are discussed in its brief. The first question propounded is, “Was Cecil Skinner guilty of any negligence imputable to appellant?” In its brief on page 27, appellant says:

“The testimony of Brown as to how the accident happened, standing alone, might conceiveabley sustain a charge of negligence on the part of the operator, based on the theory that the operator recklessly put the machine in motion, knowing that Brown was in a position of danger and of the likelihood of striking the power line.”

Appellant then urges the testimony of Brown cannot be given any credibility because it is impeached by the testimony of his own witness, William Swain. An examination of the entire testimony of Swain does not sustain such -contention. Under the conflicting evidence in this case the question of negligence on the part of Skinner was one of fact for the jury. Wheeler v. Oregon R., etc., Co., 16 Idaho 375, 102 P. 347; Carson v. Talbot, 64 Idaho 198, 129 P.2d 901; Mason v. Hillsdale Highway Dist., 65 Idaho 833, 154 P.2d 490.

Appellant further^ contends that negligence of defendant Skinner could not be imputed to- appellant as Skinner was the servant of Bonneville County under the “loaned servant” doctrine. The testimony on behalf of appellant was to the effect that the dragline and operator were rented to the county on an hourly basis and that the removal of the debris was the work of the county and had no relation to the contract for the building of a new bridge. There is evidence to the contrary as the claim made by the appellant and approved and allowed by the county for the monies due under the contract show a lump sum of $100 for the removal of such debris and such $100 is set up as a part of the total contract price.

In Nissula v. Southern Idaho Timber Protective Ass’n, 73 Idaho 37, 245 P. 2d 400, a tractor and its operator were rented to defendant. We recognized that such operator remained the servant of the owner of the tractor as to his acts.in handling and operating the machine, but was the servant of the defendant in placing the machine in a hazardous position to its damage upon the order of defendant. And we further said that as to the operator’s acts in manipulating the machine, his relationship as servant of the general employer was not altered by the fact that he was subject to the control of the defendant as to where to go and what work to do. The quotation in such case from 1 Restatement of the Law of Agency, Sec. 227, seems particularly appropriate to the case at bar, and is as follows:

“ ‘A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services. He may become the other’s servant as to some acts and not as to others.

“ ‘Comment:

«* * *

“ ‘b. Inference that original service continues. In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is. performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.

“ ‘c. Factors to be considered. A continuation of the general employment is indicated by the facts that the general employer may at any time substitute another servant, that the time of employment is short, and that the lent servant has the skill of a specialist.

“ ‘A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value. Normally, the general employer expects the employee to protect his interests in the use of the instrumentality and these may be divergent from the interests of the temporary employer. If the servant is expected only to give results called for by the temporary employer and to use the instrumentality as the servant would expect his general employer would desire, the original service continues.’ ”

As to the facts necessary to establish the relationship of employer and employee see also Pinson v. Minidoka Highway Dist., 61 Idaho 731, 106 P.2d 1020; Laub v. Meyer, Inc., 70 Idaho 224, 214 P.2d 884; Lail v. Bishop, 70 Idaho 284, 216 P.2d 955; Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137.

Appellant urges that the facts not being in dispute, the court should have decided as a matter of law that Skinner was the servant of Bonneville County. It appears to us on the contrary that even under appellant’s rental theory the court might well have held that Skinner remained the servant of appellant in the operation of the dragline. Skinner was employed and paid by appellant. Another employee could have been substituted. He was a skilled operator of a valuable and complicated machine and the time of employment was one and one-half days. Further, there was a conflict in the evidence as to whether such work was not done as an extra item in connection with the verbal contract for the building of the new bridge. We see no prejudicial error in the submission of the question to the jury.

The second question submitted by appellant is, “Was there any direct negligence on the part, of appellant?” We presume appellant means negligence other than on the part of the operator, Cecil Skinner. It having been determined there was sufficient evidence to go to the jury on the question of negligence on the part of Cecil Skinner imputable to appellant, it is unnecessary that the record also show other negligence on the part of the company. It may be pointed out, however, that the jury may have considered it negligent for the company to send its dragline with a boom the length of 40 feet to work under the high tension power line.

The third question asked by appellant is, “Was respondent Brown guilty of contributory negligence as a matter of law ?” The burden of proof of contributory negligence was on appellant. The circumstances surrounding the accident as disclosed by the record and as recited herein are not such that the court can say that respondent was guilty of contributory negligence as a matter of law. The question of contributory negligence was one for the jury. Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430; Department of Finance v. Union Pac. R. Co, 61 Idaho 484, 104 P.2d 1110; Adkins v. Zalasky, 59 Idaho 292, 81 P.2d 1090; In re Estate of Randall, 58 Idaho 143, 70 P.2d 389; McIntire v. Oregon Short Line R. Co, 56 Idaho 392, 55 P.2d 148.

The final question submitted is, “Was the verdict so excessive as to be indicative of passion and prejudice?” Neither appellant nor respondents cite any authority to sustain their positions on this question. The evidence discloses that respondent Brown was a man of 45 years of age and in good health at the time of the accident. As a result of the accident he suffered severe shock and first and second degree burns on his hand, arm and feet and a bruised right shoulder. The medical testimony further shows that he probably had a nerve injury to his arm and neck and suffered from an “anxiety state” as a result of the electrical shock. The medical testimony as to the extent of the injury appears to be sufficient to sustain the amount of the award. There is nothing in the record which would indicate that the verdict of the jury was given under the influence of passion or prejudice. This court will not interfere with the verdict of the jury because of the amount of the award except in cases where abuse of discretion is clearly apparent. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859; Gardner v. Hobbs, 69 Idaho 288, 206 P.2d 539, 14 A.L.R.2d 478; Garrett v. Taylor, 69 Idaho 487, 210 P.2d 386; Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682; Koch v. Elkins, 71 Idaho 50, 225 P.2d 457.

By its supplemental brief, appellant raises an additional question. Appellant at all times contended that the dragline and operator were simply rented to the county on an hourly basis; and that Skinner was a “loaned employee” under the exclusive direction and control of the county. Respondents, on the other hand, have contended that Skinner remained the servant of his general employer so far as the handling of the machine was concerned; and also that the evidence would sustain a finding that appellant performed the work as part of its contract. Appellant now makes the contention, in effect, that if it be determined respondents’ position is correct, then recovery in this action is barred by the provisions of the Workmen’s Compensation Law.

Section 72-204,1. C., reads as follows:

“When an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in . respect thereto, the injured employee may, at his option, either claim compensation under this act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person: provided, if the employer shall recover from such other person damages in excess •of the compensation already paid or awarded to be paid under this act, then any such excess shall be paid to the injured employee less the employer’s expenses and costs of action.”

Section 72-811, I. C., is as follows:

“An employer subject to the provisions of this act, shall be liable for compensation to an employee of a contractor or subcontractor under him or who has not complied with the provisions of section 72-801 in any case where such employer would have been liable for compensation if such employee had been working directly for such employer. The contractor or subcontractor shall also be liable for such compensation, but the employee shall not recover compensation for the same injury from more than one party. The employer who shall become liable for and pay such compensation may recover the same from the contractor or subcontractor for whom the employee was working at the time of the accident. This section shall be in force as to all contracts made subsequent to March 15, 1921.”

Appellant contends that under the theory of respondents the County of Bonneville would be the principal and appellant would be the subcontractor with the employees of both engaged in a common labor, and that the subcontractor under the above statutes is not a third person against whom an action would lie by an employee of the principal.

We held in Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054, that suit could be maintained against a third party tort-feasor although compensation had been paid under the Workmen’s Compensation Act. In Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831, we held that heirs of an employee of a subcontractor could not maintain a common-law death action against the principal contractor for the reason that by the provisions of the statutes, liability was placed upon the principal contractor to pay workmen’s compensation to injured employees of subcontractor. In such situation the principal contractor is not a third person as contemplated by Section 72-204, I. C. No additional Idaho decisions germane to the question under consideration have been called to our attention.

In support of its position, appellant relies principally upon holdings in Massachusetts under statutes similar to those in Idaho. The Massachusetts court held in White v. George A. Fuller Co., 226 Mass. 1, 114 N.E. 829, that the general employer or contractor is made liable by the Massachusetts Workmen’s Compensation Law to the employees of the subcontractor for compensation benefits and not subject to an action at law by the employee. White v. George B. H. Macomber Co., 244 Mass. 195, 138 N.E. 239, was decided on the same principle. The position taken by the Massachusetts court in the two mentioned cases is analogous to the position taken by this court in Gifford v. Nottingham, supra. In Catalano v. George F. Watts Corp., 255 Mass. 605, 152 N.E. 46, the Massachusetts court went one step further and held that the insurer of a general contractor who had paid compensation to such contractor’s, employee injured by the negligence of an employee of a subcontractor could not recover the compensation paid from the subcontractor’s surety. The decision was predicated on the statement that the employees-of the general contractor are to receive no-greater benefit -than the employees of the subcontractor. In Bresnahan v. Barre,, 286 Mass. 593, 190 N.E. 815, 817, the Massachusetts court held that an action for the death of an employee injured by a fellow servant on the project may not be maintained against such fellow servant as a third person and used the following language :

“One purpose of the Workmen’s Compensation Act was to sweep within its provisions all claims for compensation flowing from personal injuries arising out of and in the course of employment by a common employer ' insured under the act, and not to preserve for the benefit of the insurer or of the insurer and those injured liabilities between those engaged in the common employment which but for the act would exist at common law. That is the broad ground ^underlying the decisions already cited.”

As bearing on the question appellant cites, •also Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690; McGrath v. Northwestern Trust Co., 178 Minn. 47, 225 N.W. 901; Miami Roofing & Sheet Metal Co. v. Kindt, Fla., 48 So.2d 840.

A view contrary to the claimed right of immunity from suit by reason of “common employment” has been taken by the majority of the courts which have passed upon the question and to which our attention has been called. Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137, was an action by an employee of the principal against a contractor for injuries occasioned by the negligence of an employee of the contractor. After recognizing that a suit would not lie by the employees of the contractor against the principal, the Louisiana court held that the action before it was maintainable, saying on page 144 of 53 So.2d:

“Respondents argue that we should construe the compensation act so as to deny to an employee of the principal a right of action for damages against the contractor, for the reason that it is not in accordance with the principles of the Workmen’s Compensation Act that, of two men working shoulder to shoulder, one, being the employee of the principal, should be entitled to more benefits and greater advantages than the other. This is a matter for the Legislature and not for the courts, and we have no authority to deprive such an employee of the rights given him under Article 2315 of the Code. No provision of the compensation act deprives the plaintiffs, the employees of Morris & Meredith, the principal, of their action in tort against Hunt Tool Company, which is a third party within the meaning of the compensation act.”

For holdings to the same effect with discussions of the subject, see Robinson v. Atlantic Elevator Co., 298 Pa. 549, 148 A. 847; Dillman v. John Diebold & Sons Stone Co., 241 Ky. 631, 44 S.W.2d 581; Olsen v. Sharpe, 191 Tenn. 503, 235 S.W. 2d 11.

The principal being liable by statute for payment of compensation to the injured employees of subcontractor, we have properly held that the principal is not a third person within the meaning of the statute. However, the statute creates no liability on the part of the subcontractor to pay compensation to an injured employee of the principal. Their common-law relationship is not altered. The statute should not be extended by construction to abrogate this common-law relationship as the statute does not expressly so provide or necessarily so imply. We are of the opinion that a subcontractor is a third person against whom a suit will lie by an employee of the principal for injuries occasioned by the negligence of the subcontractor’s employee although the employees are engaged in common employment.

In the dissenting opinion being filed herein, it is contended that a recovery in this action is barred because of alleged negligence or contributory negligence on the part of the county in causing the drag-line to be located and operated in an unsafe place. Negligence or contributory negligence on the part of the county in the location of the dragline is not pleaded as a defense in the answer of either of defendants. Such theory was not presented during the trial of the cause. No specification of error raises such issue and such question is not mentioned or discussed in the briefs of appellant. Furthermore, the transcript does not disclose any direction by Bonneville County as to where the dragline should be located, or that such location was selected by anyone other than defendant Skinner. We do not conceive that the question so raised in the dissenting opinion is before us in the consideration of this cause.

The judgment of the trial court is affirmed. Costs awarded to respondents.

GIVENS and THOMAS, JJ., concur.