Belger Cartage Service, Inc. v. Holland Const. Co.

• Decision Date: 15 July 1978
• Docket Number: No. 48687,48687
• Citation: 582 P.2d 1111,224 Kan. 320
• Parties: BELGER CARTAGE SERVICE, INC., Appellant, v. HOLLAND CONSTRUCTION COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 1111

582 P.2d 1111

224 Kan. 320

BELGER CARTAGE SERVICE, INC., Appellant, v. HOLLAND CONSTRUCTION COMPANY, Appellee.

No. 48687.

Supreme Court of Kansas.

July 15, 1978.

Syllabus by the Court

1. Various tests have been employed by courts in determining whose employee a person is at a particular time. Among such tests are: (1) whose work was the person doing at the particular time; (2) what person had authority to discharge the workman; and (3) who had the right to exercise supervision and control over the workman and to determine the manner in which the work was to be done.

2. The policy of the law in general is to permit mentally competent parties to arrange their own contracts and to fashion their own remedies where no fraud or overreaching is practiced.

3. In determining the enforceability of exculpatory clauses purportedly transferring employees to another and relieving the transferring employer from all responsibility for harm they might cause, such clauses are to be strictly construed against the transferring employer.

4. In determining the enforceability of any such exculpatory clauses, the trial court may consider the totality of the circumstances surrounding the execution and performance of the contract including, but not limited to, whether the employer to whom the employees were purportedly transferred had knowledge of the clauses by having them pointed out to him or the clauses themselves being conspicuous in the contract; the nature of the work to be performed including the degree of skill required and the degree of risk of harm involved; and the actual performance of the parties.

5. A person supplying equipment and workmen to operate the equipment, absent an express warranty, impliedly warrants: (1) the equipment is fit for the intended use; and (2) that the workmen are skilled in the use of said equipment, will do the job in a workmanlike manner, and will exercise reasonable care in performing the work.

6. A counterclaim has the nature, characteristics, and effect of an independent action or suit by one party against another. A cause of action pled in a counterclaim that is barred by the statute of limitations may be used only as a defense to reduce any judgment received by the plaintiff.

7. The judgment of a trial court is to be upheld if it is correct, even though the trial court may have relied upon a wrong ground or assigned an erroneous reason for its decision.

D. Gary Hunter, of Williamson, Cubbison, Hardy, Hunter & Whitaker, Kansas City, argued the cause and was on the brief for appellant.

Keith Martin, of Payne & Jones, Chartered, Olathe, argued the cause and was on the brief for appellee.

McFARLAND, Justice:

This is an action by the plaintiff, Belger Cartage Service, Inc., for damage to its crane as a result of an accident which occurred on April 4, 1972. Defendant, Holland Construction Company, counterclaimed for damage to its conveyor and for loss of earnings therefrom. Following a bench trial, the trial court granted judgment to the defendant on both its counterclaim in the amount of $7,127.99 and on plaintiff's petition. Plaintiff appeals therefrom.

The trial court made the following findings of fact and conclusions of law:

"FINDINGS OF FACT

"1. On March 31, 1972, Gerald D. Humble, a foreman for defendant Holland ordered a 30-ton crane from Bud Kuhl, a dispatcher for plaintiff. The request also included that plaintiff supply an operator and oiler for the crane to be used on April 4, 1972.

"2. On April 3, 1972, dispatcher Kuhl filled out a work order form formalizing the request made on March 31 and indicating the names of operator and oiler to transport and operate the crane.

"3. The crane was delivered to the Holland Construction Company site by the operator Harlow and the oiler Platz on the morning of April 4, 1972. A copy of the work order was carried to the site by the operator, but there is conflicting testimony as to whether defendant's foreman Humble signed the work order at that time.

"4. On the reverse side of the work order there appears in small print ten paragraphs attempting to establish the rights and obligations between the parties with respect to the use of the crane.

"5. The undisputed testimony is that no one read the reverse side of the work order and no one on behalf of plaintiff pointed out the conditions set forth on the reverse side.

"6. The operator and oiler received all their instructions to report to the Holland site from plaintiff's dispatcher and had no contact or consultation with the defendant prior to the morning of April 4, 1972.

"7. The operator worked for plaintiff for thirteen years prior to April 4, 1972, and was a member of a union representing employees in his specialized field. The oiler had been employed by plaintiff for eight years; belonged to his respective specialized union; and had worked with the same operator for about six years.

"8. The crane that plaintiff delivered to the site was approximately two years old and the crane's cable was the original cable, never having been replaced.

"9. At the Holland site, the Holland employees assisted the oiler and operator in rigging the crane to lift the defendant's conveyor. The actual lifting of the conveyor by the crane was accomplished by the operator.

"10. The oiler and operator admitted that if the crane had been rigged incorrectly, they would either have corrected it or refused to lift the conveyor.

"11. During the lift the cable broke and the fall of the conveyor damaged the crane and itself. The parties stipulated that the amount of damage to the crane was $8,097.99.

"12. The damage to the defendant's property was $7,127.99.

"13. The cause of the cable breaking was not established with certainty. The cable had not been inspected for some time prior to its lift. The most likely cause was that the angle of the lift caused the cable to break.

"14. The defendant's employees did not operate the crane in any way, but merely assisted in rigging the crane to the conveyor designated for the lift. It is admitted by all parties that the crane had the capacity to lift the conveyor.

"15. The performance of the employees of the parties established that the oiler and operator were in fact employees of plaintiff during the operation of the crane and that only the crane had been temporarily leased to defendant for use.

"16. The defendant produced evidence in support of its claim for damages by way of loss of use and profit. The conclusion of the testimony was that plaintiff was damaged in the amount of $6,500.00. The court finds the plaintiff failed to meet its burden of proof in this regard and that the evidence was remote, speculative and a matter of conjecture or opinion."

"CONCLUSIONS OF LAW

"1. The work order form signed by plaintiff's dispatcher and defendant's foreman was just that an order for the lease of equipment at a certain time and an acknowledgement of the receipt of the equipment. The various provisions on its reverse side in fine print were not discussed or contemplated by the parties to be a contract setting forth the rights and obligations of the parties.

"2. For one party to contract away its legal duty of due care so as to not make them responsible for their negligence through the use of exculpatory clauses is contrary to public policy.

"3. While parties may contract to determine the right to use and control leased equipment, performance of the parties may vary the terms of the contract.

"4. The provisions on the reverse side of the work order form contain clauses against the public policy of Kansas with respect to excusing one party's negligence, and will not be given force or effect. The other provisions of the contract dealing with the right of control of the equipment was varied by the performance of the parties.

"5. The defendant was not negligent in the use or operation of the plaintiff's equipment because defendant did not operate the equipment. Plaintiff is responsible for the damage caused to defendant's equipment and its loss of use because of the negligent operation of the equipment by plaintiff's employees.

"6. Plaintiff is further responsible for defendant's losses because it breached an implied warranty that the equipment was, in fact, fit for the use for which it was intended.

"7. Defendant's claim for its damages is based upon the negligence action, is not barred by the Statute of Limitations and defendant may recover its full loss, including loss of earnings, if proven.

"See: 195 Kan. 51, 402 P.2d 782."

"JUDGMENT

"Judgment is entered this date in favor of defendant and against plaintiff in the amount of $7,127.99 and costs."

Accompanying the above findings and conclusions was the following letter from the trial court:

"Enclosed you will find a Memorandum Decision largely in conformity with the findings and conclusions submitted by defendant. In addition, I would make these observations:

"Upon contact from Holland, Belger selected the appropriate equipment to meet the needs of the job. The crane was capable of lifting 60,000 pounds and was two years old. Holland employees made the hookup or attached the cables to the conveyor, including the tag lines. Had the hookup been in error, the Belger employees would have advised the Holland employees. Belger, through its employees, selected the set point. The eyes on the 26,000 pound conveyor were already fastened to the piece of equipment for lifting purposes. Belger employees follow customer's instructions unless they consider them to result in an unsafe condition.

"In the lift of the conveyor within a fraction of a minute the conveyor pulled around into a critical area, the weight shifted the cable to one side, its angle of entering the boom head caused the cable to jump off the shreave or pulley and it frayed and broke. Whereupon, the boom bounded back onto the cab of the crane, jerked the boom out of the crane and tore the cab off the crane, all to the stipulated damage of Belger in the amount...