Anderson v. Abramson
| Decision Date | 07 March 1944 |
| Docket Number | 46329. |
| Citation | 13 N.W.2d 315,234 Iowa 792 |
| Parties | ANDERSON v. ABRAMSON. |
| Court | Iowa Supreme Court |
Rehearing Denied May 6, 1944.
Gillespie & Gillespie, of Des Moines, for appellant.
Stipp Perry, Bannister & Starzinger, of Des Moines, for appellee.
The defendant was the successful bidder for the contract to furnish a crane and crane operator for a Works Progress Administration project for the government. While the crane was being operated on the job it tipped over, injuring the plaintiff, a worker for the W.P.A. on the same job. In his suit against the defendant for damages for his injuries the plaintiff alleged negligence in the operation of the crane as the proximate cause of his injuries, and that the operator was defendant's servant. Defendant pleaded a general denial and specifically denied that he was the master of the operator. At the close of all the evidence the trial court sustained defendant's motion and directed a verdict on the ground "that Mr. Boatwright (the crane operator) was a servant of the W.P.A. and not of Mr. Abramson ***." The correctness of this ruling of the trial court is the only issue on this appeal.
The inquiry here is as to whether Boatwright was, at the time of the accident the servant of the defendant or the servant of W.P.A. Before reviewing the testimony, the principles of law which govern the "borrowed servant doctrine" should be stated. At the outset it should be observed that the defendant was admittedly the general employer of Boatwright. The borrowed servant rule is a doctrine of sanctuary for the general employer. As employer he would ordinarily be liable for the act of his servant under the doctrine of respondeat superior because of his superior control over his subordinate. If he can show that he has loaned the servant to another and surrendered to the borrower all direction and control over him, then the borrower becomes the master who is alone liable for the acts of the servant. But the burden is upon the general employer to establish not only that he loaned the servant but that he surrendered control and direction over the servant to the borrower. See, Hooper v Brawner, 148 Md. 417, 129 A. 672, 42 A.L.R. 1437. In 35 Am.Jur. p. 971 the rule is stated: "A master cannot avoid liability for the negligent act of his servant by merely showing that at the time of the injury, he had loaned the servant to another; but he must also show that when he loaned him, he surrendered to the borrower the right to control and direct him."
Of course the first test that suggests itself in the inquiry relates to control. He who has control over the servant must respond in damages for the servant's acts. This court has applied this test in Kanipe v. Grundy County Rural Electric Co., 231 Iowa 187, 300 N.W. 662, 665, where we stated: The presence of the often cited case of Standard Oil Co. v. Anderson as a supporting citation in the above pronouncement suggests this court's adherence to the further rule that the control necessary to make the borrower the master must be something more than a right to point out the work to do. See, also, Driscoll v. Towle, 181 Mass. 416, 63 N.E. 922; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085. See, also, Restatement Agency, section 227, par. a.
Another test frequently employed is sometimes called the Whose Business Test. Whose business is being done by the borrowed servant? Of course it is not entirely satisfactory for, in a sense, the servant's work might be furthering the business of both. Probably the best statement of the general rule is contained in Justice Cardozo's opinion in Charles v. Barrett, 233 N.Y. 127, 135 N.E. 199, 200 where he stated: "as long as the employee is furthering the business of his general employer by the service rendered to another, there will be no inference of a new relation unless command has been surrendered, and no inference of its surrender from the mere fact of its division." See, also, Byrne v. Kansas City, Ft. S. & M. R. R., 8 Cir., 61 F. 605, 24 L.R.A. 693; Standard Oil Company v. Anderson, supra; Restatement Agency, sec. 227, par. b.
The right of the general employer to discharge the servant or substitute another for him indicates a continuation of the general employment and such a continuation is also indicated where the general employee is using his employer's machine or appliance. Ash v. Century Lbr. Co., 153 Iowa 523, 133 N.W. 888, 38 L.R.A.,N.S., 973; Stewart v. California Imp. Co., 131 Cal. 125, 63 P. 177, 724, 52 L.R.A. 205; Wagner v. Larsen, 174 Wis. 26, 182 N.W. 336; Restatement Agency, sec. 227, par. c.
We will now consider the facts in evidence in the light of the foregoing principles of law. There is but little dispute in the testimony. The rental agreement which was part of the bid and acceptance required defendant to furnish the dragline crane outfit and a competent operator and to keep the crane in proper operating condition and supply the necessary lubricants and fuel. The defendant was a contractor and there was evidence to the effect that he owned several dragline crane outfits and that a part of his business consisted of renting these machines together with an operator to third persons. In this case the agreed rental to be paid to defendant was $3.40 per hour which sum included the charge for "Operating Personnel." The crane is a large complicated machine, the base being two caterpillar treads or tracks upon which is mounted the crane mechanism. The base is 8 or 9 feet in width. The boom is about 40 feet long and so constructed as to permit its being raised or lowered or moved in a circular direction. A bucket at the end of the boom is manipulated by cables and pulleys and the bucket and boom are moved by an engine located above the base and operated by clutches, gear-shifts and a throttle.
The evidence of the W. P. A. officials would indicate that they had control over the operator of the crane to the extent that they could tell him where to locate the crane, what work to do, and...
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