American Tel. & Tel. Co. v. Ohio Val. Sand Co.

• Decision Date: 16 November 1948
• Docket Number: 10065.
• Citation: 50 S.E.2d 884,131 W.Va. 736
• Parties: AMERICAN TELEPHONE & TELEGRAPH CO. et al. v. OHIO VALLEY SAND CO.
• Court: West Virginia Supreme Court

50 S.E.2d 884

131 W.Va. 736

AMERICAN TELEPHONE & TELEGRAPH CO. et al. v. OHIO VALLEY SAND CO.

No. 10065.

Supreme Court of Appeals of West Virginia.

November 16, 1948

Concurring Opinion Dec. 14, 1948.

Syllabus by the Court.

1. Under the so called 'borrowed servant' rule a general employer remains liable for the negligent act of his servant unless it affirmatively appears that he has completely relinquished control of the servant's conduct from which the alleged negligence arose to the person for whom the servant is engaged in performing a special service.

2. The fact that the intervening negligence of another contributed to the happening which damaged the property of a third person does not relieve from liability the person whose negligence set in motion the primary cause of the injury if the injury could have been reasonably foressen by that person as a result of his conduct.

Spilman, Thomas & Battle and R.S. Spilman Jr., all of Charleston, and C. E. Copen, of Winfield, for plaintiffs in error.

Walter F. Ball, of New Martinsville, and Handlan, Garden, Matthews & Hess, of Wheeling, for defendant in error.

KENNA Judge:

This action of trespass on the case was brought in the Circuit Court of Putnam County by American Telephone & Telegraph Company of West Virginia, as owner, and American Telephone & Telegraph Company, a New York Corporation, as lessee against Ohio Valley Sand Company, seeking to recover damages for the destruction by the defendant of their transmission lines across the Kanawha River near Red House on the north bank and Winfield on the south bank. At the conclusion of the plaintiffs' testimony the defendant's motion to strike was sustained and from a directed verdict and judgment in favor of the defendant this writ of error was granted.

In the year 1941 the Ohio Valley Sand Company owned and operated a floating nonself-propelled derrick with a boom eighty feet long. At about noon on the 10th of November, 1941, this derrick was being towed down the Kanawha River, the boom in practically a vertical position so that when passing Winfield it struck the wires of the plaintiff companies there crossing the river in four different levels of ten wires each, the lowest being, at the point of its greatest sag, approximately four to six feet above the clearance required from the river at pool stage by the Office of the United States Engineer. According to the plaintiffs' testimony the resultant damage cost $6,800.00 to repair.

Upon reviewing testimony on a sustained motion to strike it is to be looked upon favorably to the litigant against whose interests the motion operates, giving him the benefit of all reasonable inferences. Our statement of fact will be upon that basis.

The principal place of business of the Ohio Valley Sand Company was at New Martinsville and in the spring of 1941, as it had done in the spring of 1940, it leased to J. W. Harmon the derrick in question together with certain conveyors, bins and lesser equipment, the term of the lease being until cold weather made the operation of the derrick in Harmon's business impracticable. Harmon's business was the river transportation in barges of slag procured at Weirton from the Standard Slag Company, loading and unloading being a part of the contract to transport. The lease from the defendant company was verbal and provided for a rental royalty on a tonnage basis, there being a fixed monthly minimum. As a part of the understanding Harmon was to receive the services of an engineer, fireman and watchman employed by the Ohio Valley Sand Company upon whose pay roll they were to remain during the period of the lease to Harmon. The Ohio Valley Sand Company was to furnish the necessary fuel, lubricants and other supplies for this derrick. On several occasions representatives of the Ohio Valley Sand Company visited the derrick, though the extent to which they inspected it is not shown. Harmon reported to that company when he moved the derrick from one undertaking to another.

In 1936 the plaintiff companies constructed two steel towers on the opposite banks of the Kanawha River, the one on the north being near Red House and that on the south near Winfield, for the purpose of spanning the river with a section of their transmission lines called 'Cuyahoga Falls-Charleston Line.' These towers were about eighty feet high and between them were stretched four layers of galvanized steel wire, copper not being of sufficient strength. The total of forty wires was raised between these towers to the height required by the Office of the United States Engineer, the span being approximately eleven hundred feet in length. Since there is no question of fault on the part of the plaintiff companies raised, we regard it as unnecessary to go into further detail regarding the nature of the construction of their lines although the record is rather complete in that respect.

Early in November, 1941, Harmon agreed to deliver slag at a farm owned by William Blizzard on the south side of the Kanawha River just above Winfield and to a road contractor at Shank's Landing below Winfield. Harmon did not have an available tug or tow boat to move the derrick from its then location together with the slag to the slag's destinations on the Kanawha River. Therefore he employed John Rake who owned and operated a tug that he used for the purpose of towing nonself-propelled boats on the Ohio and Kanawha Rivers. Rake towed the derrick and the barge carrying the slag to the landing at the Blizzard farm and, after the slag shipped to that point had been unloaded, started down river to Shank's Landing. As has been said, the boom of the derrick was about eighty feet high while the clearance between the river and the lines of the plaintiff companies was about sixty-four feet, so that in passing under, the boom tore down the lines.

The defendant below took the position, first, that Owen Berga, the engineer, as well as the fireman and watchman, was the borrowed servant of J. W. Harmon for whose conduct at the time the Ohio Valley Sand Company was not responsible; and, second, that if that were not so, conduct of theirs was the proximate cause of the destruction of the plaintiffs' property, and, if it did result from negligent it was the intervening negligence of the person in charge of the tug guiding the derrick down river.

It is to be remembered that the contract between the Ohio Valley Sand Company and J. W. Harmon for the lease of the derrick was oral, and, therefore, that its precise meaning and effect is likely more subject to practical interpretation by the subsequent conduct of the parties thereto than if it were written. What that interpretation was rests of course, first, upon facts and, second, upon the inferences and conclusions to be deduced from those facts by the fact finding tribunal, here a jury. In this jurisdiction it is settled that in cases involving no controversy concerning the actual facts, if different inferences could be drawn therefrom, submission to a jury is nevertheless required. Hicks, Adm'r v. Southern Ohio Quarries Co., 116 W.Va. 748, 182 S.E. 874; Ketterman v. Dry Fork Railroad Co., 48 W.Va. 606, Syl., Point 6, 37 S.E 683. See...