Benoit v. Hunt Tool Co.

• Decision Date: 23 April 1951
• Docket Number: No. 39974,39974
• Citation: 53 So.2d 137,219 La. 380
• Parties: BENOIT v. HUNT TOOL CO. et al. HOLLOWAY v. HUNT TOOL CO. et al. ANCHOR CAS. CO. v. HUNT TOOL CO. et al.
• Court: Louisiana Supreme Court

Page 137

53 So.2d 137

219 La. 380

BENOIT v. HUNT TOOL CO. et al.

HOLLOWAY v. HUNT TOOL CO. et al.

ANCHOR CAS. CO. v. HUNT TOOL CO. et al.

No. 39974.

Supreme Court of Louisiana.

April 23, 1951.

Rehearing Denied May 28, 1951.

Bass & Brame, Lake Charles, for plaintiffs-applicants Stanford Benoit and Joseph Holloway.

Patin & Patin, Lake Charles, for plaintiff-applicant Anchor Cas. Co.

Bienvenu & Culver, New Orleans, P. A. Bienvenu, New Orleans, of counsel for defendants-respondents.

HAWTHORNE, Justice.

Stanford Benoit and Joseph Holloway, employees of Morris & Meredith, Inc., an oil well drilling company, each instituted a suit seeking to recover damages from defendant Hunt Tool Company and its liability insurer, Insurors Indemnity and Insurance Company, for injuries sustained by them resulting from an explosion of a fuel tank caused by the negligent act of Henry Guillory, who was a welder in the general employ of Hunt Tool Company. Plaintiff Anchor Casualty Company, as compensation insurer for Morris & Meredith, Inc., and Wilson Manufacturing Company, instituted a suit against the same defendants seeking to recover and medical of workmen's compensation and medical expenses paid by it to employee of those companies for injuries received as a result of the explosion of the fuel tank.

All three cases were consolidated for the purpose of trial, with separate decrees to be rendered in each case. After trial in the lower court there was judgment dismissing the suit of each plaintiff. The basis of this decision was that Hunt Tool Company was not a third party in contemplation of the provisions of the Workmen's Compensation Act of this state, and that the sole remedy of the plaintiffs Benoit and Holloway was for compensation, which they had already recovered from Anchor Casualty Company, and that the compensation insurer had no greater right than they.

The Court of Appeal affirmed the judgment of the district court but for different reasons. 45 So.2d 512. The basis of its decision was that at the time of the accident Guillory, quoad these plaintiffs, was a third person within the meaning of the act, and that these plaintiffs could claim compensation and also sue in tort the third person causing damage, but that Guillory had been loaned to or hired by Morris & Meredith, Inc., and was at the time of the accident its employee under the borrowed servant doctrine, or that Guillory was pro hac vice an employee of Morris & Meredith, Inc., and that the defendant Hunt Tool Company was not liable for his negligent act. One of the judges dissented, being of the opinion that Guillory was an employee of Hunt Tool Company, and that the borrowed servant doctrine had no application. All members of the Court of Appeal were in full accord that the evidence clearly established that the accident and the injuries sustained by the plaintiffs Benoit and Holloway were due to the negligence of Henry Guillory in attempting to weld a partially closed tank containing fuel oil, and his negligence is conceded in this court and is not made an issue in this case.

On application of all plaintiffs this court granted a writ to review the judgment of the Court of Appeal, and the case is now before us under our supervisory jurisdiction.

As pointed out by the Court of Appeal, the facts in this case are not seriously disputed, and are set out in detail both in the majority and in the dissenting opinion. The principal question is whether from the facts in the case the negligent employee, Guillory, was under the law a borrowed servant, or employee pro hac vice, of Morris & Meredith, Inc. To determine this question we deem it necessary to reiterate certain pertinent facts.

Defendant Hunt Tool Company was engaged in the welding business and the renting of materials used in the oil well drilling business, and had in its regular employ several skilled welders. It rendered welding service away from its place of business, which included the furnishing of welders, equipment, and materials, for which it charged on an hourly basis. Upon leaving and returning to the shop the welders and their helpers on a particular job were required to punch a clock, and they were paid by Hunt Tool Company for the time intervening. These employees were selected, employed, and paid by Hunt Tool Company, and the sole right to discharge them was also in the Hunt Tool Company.

Morris & Meredith Inc., was a corporation engaged in the oil well drilling business, and on the day of the accident and for some time prior thereto was engaged in the overhauling and repairing of a rig to be used in drilling for oil and gas. In the course of this work it was necessary to have welding done from time to time, and, as Morris & Meredith did not have welding equipment or supplies or welders in its employ, it engaged Hunt Tool Company to render this service, for which Morris & Meredith was to pay to the tool company $5.50 per hour for a welder, a helper, welding equipment and supplies.

From day to day there would be dispatched to the site of the rig one or more welders together with their helpers and the necessary welding supplies. The welding crew so dispatched was in the charge of Henry Guillory, the individual whose negligent act caused the explosion in the instant case. Upon their arrival at the site of the rig they would report to Mr. West, foreman of Morris & Meredith, and West or Mr. Morris, an officer of Morris & Meredith, would give them directions and instructions as to what objects or things were to be welded and what hours they were to work and when to leave and return to the job. If the work of one of these welders proved unsatisfactory, Morris & Meredith could not discharge him but could order him to return to the welding shop of the Hunt Tool Company. Further, although these welders were informed as to what welding they were to do by Morris & Meredith, the method of accomplishment of such work, that is, the type of welding procedure to be used, was entirely up to the welders themselves, as they were skilled in this line of work. At the end of each day's work, the welders would present to Morris & Meredith a ticket with a memorandum of the work done for that day, and some official of Morris & Meredith would sign it. One copy of this memorandum was kept by Morris & Meredith, and the welder would take another to the Hunt Tool Company. On the basis of these tickets Hunt Tool Company would bill Morris & Meredith for the services rendered by its welders and for the use of its equipment and materials on the hourly basis agreed upon, and Morris & Meredith would pay Hunt Tool Company.

On the day of the accident one of the officials of Morris & Meredith instructed a general employee of Hunt Tool Company, Henry Guillory, to weld a fuel tank partially filled with fuel oil. Guillory questioned the advisability of doing this work since the tank contained oil, and the official of Morris & Meredith suggested that he use an electric welding torch. During the process of this welding Guillory momentarily turned away from this particular job and lit an acetylene torch, and the explosion occurred. As a result of this explosion plaintiffs Beniot and Holloway, employees of Morris & Meredith, received the injuries for which they are seeking damages in the instant suits and for which they, as well as two other employees on the job, were paid the compensation which the other plaintiff, Anchor Casualty Company, the compensation insurer, seeks to recover.

It is a well settled principle of law that the master is liable for the torts of his servant committed in the scope and course of his employment, but it is often difficult where two possible masters are involved to determine which is liable for the tort, and to determine such liability we must look to the doctrine of the borrowed servant or employee pro hac vice. In determining liability under this doctrine in some cases the courts have imposed liability on the person in whose business the employee was engaged at the time the tort was committed. In others the test has been the right of control over the servant at the time the tort was committed. It has been pointed out that in applying the latter test it is often difficult to decide just what fact or facts constitute control. Mere division of control does not, in itself, raise the presumption of surrender of control, but there is a presumption that the general employer is liable, and it rests upon him to show that, as to the particular work in question, the servant has been lent and is performing only the borrower's work, and that he was not the defendant's servant at all. It has been said that even the control test is not an infallible one, and that the elements of each case must be taken into consideration. Where, however, it is clear that control by the defendant was coupled with performance for the defendant and in the defendant's business, the result is certain.

Some courts follow the so called 'whose business' test; others the 'control' test. According to the Supreme Court of the United States these two tests are really one and the same, and determining who controls the servant is merely a means of determining in whose business the servant is engaged. The Standard Oil Company v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Denton v. Yazoo & Mississippi Valley Railroad Co. et al., 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310; see Brown, Lent Servant Doctrine, Insurance Law Journal of 1949, pp. 343-350; Note, 44 Harv.L.Rev. 1136.

The decisions throughout this country in which this doctrine has been applied cannot be reconciled, but we shall discuss what we consider to be the leading cases on the subject and then apply the test laid down therein, as we understand it, to the facts in the instant case.

The first of these is The Standard Oil Company v. Anderson, supra. In that case the injured employee was employed as a longshoreman by a master stevedore, who was under contract...