Brittingham v. American Dredging Co.
| Decision Date | 16 January 1970 |
| Citation | 262 A.2d 255 |
| Parties | Catherine BRITTINGHAM, Executrix of the Estate of John William Brittingham, t/a Brittingham Construction Company, a partnership, Plaintiff Below, Appellant, v. AMERICAN DREDGING COMPANY, a corporation of the Commonwealth of Pennsylvania, Defendant Below, Appellee. |
| Court | Supreme Court of Delaware |
Appeal from the Superior Court in and for New Castle County.
Victor F. Battaglia, Wilmington, for appellant.
Robert G. Carey of Prickett, Ward, Burt & Sanders, Wilmington, for appellee.
This is an appeal from a judgment entered for the defendant after trial by the court without a jury. Defendant, American Dredging Company, contracted to dredge a channel and turning basin at Lewes for the Cape May-Lewes Ferry. The operation consisted of dredging and pumping water, sand and mud into a spoil area. The spoil area required a bulldozer operating within it to keep pushing material up against the dikes enclosing the area to overcome the erosion caused by the water runoff.
Plaintiff's decedent operated a partnership business leasing heavy equipment and operators. The partnership agreed with defendant to lease various pieces of equipment 'manned and maintained at an hourly rate.' Among the equipment thus leased was a bulldozer operated by William Moore, an employee of the partnership. This bulldozer operated within the spoil area maintaining the dikes against erosion.
While so operating, the bulldozer became mired to an extent requiring the shutdown of the pumping operation from the dredge in order to extricate the machine. The bulldozer was mired in several feet of mud and sand, caused, it seems plain, by the action of Moore rocking the bulldozer back and forth in attempts to dislodge it. This is characterized in the evidence as negligent operation. It seems clear that these attempts merely dug the machine in further in the muck. The resulting damage to the machine was in the neighborhood of $5,000.
On the assumption that Moore's negligence caused the damage, the partnership sued the Dredging Company, alleging that he was its employee; that his negligence was imputed to it, and that accordingly it was responsible in damages. The trial judge ruled that the partnership did not meet the burden of proof placed on it to prove that Moore was the employee of the defendant, and gave judgment for the defendant.
Ordinarily, when the owner of heavy equipment rents the equipment to another and supplies an operator under a fixed charge covering the rental cost, including the wages of the operator, he is considered to retain control over the actual operation of the equipment so as to protect his interest in it. In the...
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