Wylie-Stewart MacH. Co. v. Thomas , 192 Okla. 505 ( 1943 )

The determination as to liability for the acts of the servant under the loaned servant rule requires a consideration of many different factors. Practically every case presents facts peculiar to itself. Therefore, the determination must be governed by legal principles more than by the result reached in particular cases. The ultimate question is, "In whose business was the servant engaged?" Braxton v. Mendelson, 233 N.Y. 122,135 N.E. 198. This question is to be determined as of the exact time of the negligent or wrongful act complained of. 35 Am. Jur. 970. And the question is to be determined by deciding who has the control of the servant. The original employer is not absolved from liability unless he has surrenderedcomplete control to the one to whom the servant is furnished. City of Tulsa v. Randall, 174 Okla. 630, 52 P.2d 33; Randolph v. Oklahoma City General Hospital, 180 Okla. 513, 71 P.2d 607; 18 Rawle C. L. 784. The question is generally one of fact for the trier of the facts. It becomes one of law only when all reasonable men would agree that but one conclusion could be reached.

The factors to be considered here are these: The defendant had the sole right to hire and fire the operator of the machine; it paid his wages; the machine was a valuable one requiring a skilled mechanic to operate it; its proper care and handling were matters of concern to the defendant; the operator, Jones, was instructed by the defendant in co-operating with the Highway Department "not to tear up the shovel" and to use his own judgment "about whether it was injuring the shovel or not"; the operator owed a duty to co-operate with the superintendent of the Highway Department, but in doing so he owed a continuing and ever present duty to the defendant to so handle the machine as to protect it from damage; the duty to protect the machine cannot be dissociated from the duty to co-operate with the Highway Department in performing the work; each time the superintendent gave him directions, it was his duty to determine whether the machine would probably be damaged by carrying out the directions, and if he thought it would, it was his duty to refuse to carry them out; the defendant furnished the entity — the shovel and operator — to the Highway Department for an hourly consideration of $6.75; the Highway Department could have dispensed with the services of the entity, but it could not have discharged the operator and substituted another operator of its own choosing.

When these factors are given due consideration, I am of the opinion that the question of whether Jones was the servant of the defendant at the time plaintiff suffered his injuries was properly submitted to the jury, in the absence of a motion for the court to instruct the jury that Jones was the servant of the defendant. I am not sure that it would not have been the duty of the court to hold as a matter of law that Jones was defendant's servant, if plaintiff had so requested.

Under the facts established by the evidence it was necessary that the representatives of the Highway Department point out to the operator the work to be done and give signals and directions as to details of the work and the manner of doing it, and it was necessary that the operator co-operate with representatives of the department. But such co-operation did not constitute control so as to relieve the defendant from liability. 39 C. J. 1275. From the testimony of the maintenance engineer in charge for the Highway Department it is clear that he understood that there was co-operation between Jones and the Highway Department, but he did not understand that Jones was under the control of the department.

In addition to the foregoing authorities, see, also, Restatement, Agency, § 227; 39 C. J. 1275; 35 Am. Jur. 455; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S. Ct. 252; Charles v. Barrett, 233 N.Y. 127, 135 N.E. 199; Bartolomeo v. Charles Bennett Contr. Co., 245 N.Y. 66, 156 N.E. 98; Wagner v. Larsen, 174 Wis. 26, 182 N.W. 336; Densby v. Bartlett, 318 Ill. 616,149 N.E. 591, 42 A. L. R. 1406, and note; Moss v. Chronicle Pub. Co., 201 Cal. 610, 258 P. 88, 55 A. L. R. 1258, and note; Ramsey v. New York C. R. Co., 269 N.Y. 219,199 N.E. 65, 102 A. L. R. 511, and note.

The majority opinion relies strongly on McFarland v. Dixie Machinery Equipment Co., 348 Mo. 341, 153 S.W.2d 67, 136 A. L. R. 516. While that case and the present case contain some features that are quite similar, yet I believe there are enough differences in the facts to distinguish the cases. There the operator of the machinery was instructed by the owner of the machine "that he would receive his orders from those in charge of the project," and the person in charge of the work for the WPA testified that he had exclusive supervision over the equipment and the work. There is testimony that the operator was told to do what the foreman wanted done "outside of jeopardizing the machine itself, like running in the river, which they did a few times." The Missouri court does not consider this warning as other than an admonition to be careful with the machinery. In that case the first borrower of the machinery understood that it had such complete control over the machinery and operator that it could lend the same to a third party, which it did. Here the contract between the defendant and the Highway Department is silent on the question of control of the shovel. The engineer of the Highway Department testified:

"Q. Did your department or anybody connected with the department assume supervision, any more supervision over the operation of the trucks and the man of the shovel than to point out where this dirt was to be taken from and where it was to be loaded? A. Not only in a co-operative way. The operation of the shovel, of course, was up to the man that was on and Mr. Baxter would keep everything going. The operation, of course, of the shovel is in the hands of the operator . . . Q. And you didn't have any authority over the machine or control of him or how it was operated, did you? A. Well, only to this extent, I would say: As long as that machine was getting that dirt out economically and co-operating with us in doing that kind of a job, why . . . Q. Then you were satisfied? A. Yes, sir. Q. And when it happens that wasn't done, then the only authority you had was to complain to the Wylie-Stewart Machinery Company, wasn't it? A. Yes, sir."

I think this testimony, along with the instructions to the operator, above quoted, make it clear that the defendant did not surrender absolute control of the shovel and operator, and all parties so understood it.

For the foregoing reasons, I respectfully dissent.

DAVISON and ARNOLD, JJ., concur in this dissent.