Bell Transp. Co. v. Morehead

• Court: Arkansas Supreme Court
• Writing for the Court: BYRD
• Citation: Bell Transp. Co. v. Morehead, 437 S.W.2d 234, 246 Ark. 170 (Ark. 1969)
• Decision Date: 17 February 1969
• Docket Number: No. 5--4775,5--4775
• Parties: BELL TRANSPORTATION COMPANY, Appellant, v. Orville MOREHEAD, Appellee.

Page 234

437 S.W.2d 234

246 Ark. 170

BELL TRANSPORTATION COMPANY, Appellant, v. Orville MOREHEAD, Appellee.

No. 5--4775.

Supreme Court of Arkansas.

Feb. 17, 1969.

William H. Drew, Lake Village, and Wright, Lindsey & Jennings, Little Rock, for appellant.

Sam Robinson and McMath, Leatherman, Woods & Youngdahl, Little Rock, for appellee.

BYRD, Justice.

Appellee Orville Morehead was awarded a $165,000 judgment upon a jury verdict against appellant Bell Transportation Company for injuries substained in connection with the use of Bell's tandem truck and lowboy. Since the asserted liability against Bell must rest upon the doctrine of respondeat superior, Bell contends that it was entitled to a directed verdict on the ground that its regular driver Sebastian Carrior and its supervisor J. C. Melton were borrowed servants in the employ of Houston Contracting Co. at the time of Morehead's injury.

The record shows that Houston Contracting Co. was involved in a 'change out' of engines at Tennessee Gas Transmission Co. compressor stations. The engines had been removed from their foundations, sent back to the factory to be reworked and then brought back to be reinstalled in the compressor stations. The engines were moved in halves. Each half weighed about 80 tons. Bell is engaged in heavy hauling in Louisiana and 21 other states. It operates under an Interstate Commerce Commission permit. For deliveries, Bell charges the regular tariff prescribed by ICC regulations. The bill of lading signed by Houston called for Bell to 'furnish one tandem truck and one 16 wheel lowboy and one supervisor to work as instructed.' The truck and lowboy was driven by one Sebastian Carrior to a railroad siding, accompanied by J. C. Melton, Bell's supervisor, in another vehicle. There, the Houston Contracting Co. moved the half motor from a flat car to the lowboy, which Sebastian Carrior drove to the compressor station. In the course of attempting to back the lowboy up a ramp to the platform at the compressor station onto which the half motor was to be unloaded, the drive shaft on Bell's truck broke, making it impossible to move the rig under its own power. A cable from a winch truck was tied to the lowboy through a block and tackle arrangement and the lowboy was winched to within a few feet of the platform. The winch truck was operated by Danny Williams, an employee of Houston, and signals were given him by J. E. Morehead, Houston's assistant superintendent. Signals and orders to the truck driver, Carrior, were relayed by J. C. Melton, Bell's supervisor. When the truck had been winched to within 4 or 5 feet of the platform, it was discovered that the cable was fouling against the platform causing a loss of power. In order to accomplish a higher hitch on the lowboy it was necessary to secure slack on the cable. The winch truck operator began to roll off cable from his drum and appellee Morehead was instructed to pick up the cable to gather up the slack. While appellee Morehead was so engaged, Sebastian Carrior permitted the truck to roll forward. The cable in Morehead's hands was immediately stretched taut, flinging him against the platform and inflicting the injuries complained of.

Sebastian Carrior had been Bell's employee for 15 years. He testified that during the winching operation, he sat under the wheel of the truck to steer and brake when necessary; that the flagman who signaled him to put on his brakes was Mr. Melton, Bell's supervisor and his immediate superior. He said that when he left Bell's office on the morning of the accident, he knew where he was going. They told him to go to Port Sulphur and pick up the engine at the railroad siding and move it to the building where it could be unloaded into the building. Mr. Melton went along as his supervisor to see that he hauled it in the proper manner.

Mr. J. C. Melton testified that after the truck would not operate under its own power, Mr. Edwards, Houston's job superintendent, Mr. J. E. Morehead, Houston's assistant job superintendent and appellee's brother, Houston's millwright foreman and he were all talking and trying to figure out some means of winching the lowboy back into the building. The winch truck and a D8 tractor were hooked up to the trailer. He was standing at the left front door of the truck flagging it. Mr. J. E. Morehead was standing on the platform where he could see him for purposes of signalling. He was taking orders from Mr. Jesse Morehead. Appellee Morehead was hurt when they let the truck roll ahead approximately 3 or 4 feet on a signal from Jesse Morehead. He said that at all times after the driveshaft broke he was taking orders from Jesse Morehead. On cross examination Mr. Melton stated that the tandem truck and lowboy could cost as much as $50,000 and that he was sent along as supervisor to help protect that equipment. They couldn't turn special equipment like that over to just anybody to use as they might see fit. He actually supervised the transporting of the equipment from the railroad track to the pumping station. That was his and Bell's business there and he hadn't worked for anybody but Bell Transportation Company. Mr. Bill Edwards was superintendent for Houston Contractors and J. E. Morehead was assistant superintendent. He was taking his orders fro Mr. J. E. Morehead.

Mr. William R. Edwards, a witness for Bell, testified that Mr. J. E. Morehead was directing the movement of the trucks and the entire operation from the platform outside the building; that the Bell truck was under the direction of Houston Contracting Co. from the time it arrived until it left and that he represented Houston and directed the truck in its use. That Mr. Melton who was with Bell was under his supervision and control and Houston was responsible for moving the engines and installing them. Later, however, Mr. Edwards testified that he told the truck driver and supervisor where to go...