Burr v. Apex Concrete Co.

• Decision Date: 19 May 1976
• Docket Number: No. 2--57316,2--57316
• Citation: 242 N.W.2d 272
• Parties: Donald BURR, Appellant, v. APEX CONCRETE COMPANY and Lee Shockley, Appellees.
• Court: Iowa Supreme Court

Page 272

242 N.W.2d 272

Donald BURR, Appellant, v. APEX CONCRETE COMPANY and Lee Shockley, Appellees.

No. 2--57316.

Supreme Court of Iowa.

May 19, 1976.

Conley, Zohn & Needles, Des Moines, for appellant.

Bradshaw, Fowler, Proctor & Fairgrave by Michael H. Figenshaw and Terry C. Hancock, Des Moines, for appellees.

Heard by MOORE, C.J., and LeGRAND, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

UHLENHOPP, Justice.

The principal question in this appeal is whether the owner of a concrete ready-mix truck has tort responsibility for the conduct of a concrete contractor's employees when they give directions to the truck driver as he backs the truck and when they help him position the unloading chute.

On March 20, 1972, plaintiff Donald Burr was an employee of Leonard Reed Construction Company (Reed), which had a subcontract to do the concrete work in an apartment complex in West Des Moines Iowa. Defendant Apex Concrete Company (Apex) delivered concrete in ready-mix trucks. Reed's foreman at the site, Richard T. Lee, told the drivers of Apex trucks where to dump the concrete.

Lee told one of those drivers, Lee Shockley, to dump his load through a window in a concrete block wall. This meant the chute on the rear of the truck had to go through the window. Shockley could not see the chute at the back of the truck, and he enlisted Lee's help.

Lee stood behind and to the side of the truck, directing Shockley to the rear and operating a hydraulic control which raised or lowered the chute. Another of Reed's employees, Clinton F. Humbert, stood at the window in the wall and attempted to guide the chute through that aperture. But a short piece of steel projecting from the chute struck the wall with sufficient force to push in a section of wall some 20 degrees.

Shockley got out of the truck and talked with Lee. The evidence is conflicting whether Lee and Shockley warned Reed's employees in the building, one of whom was plaintiff, about the leaning wall. At any rate, those employees continued to work.

Shockley dumped his load of concrete and pulled his truck away. Shortly thereafter--ten to fifteen minutes after the truck struck the wall--the leaning section of the wall fell onto plaintiff, injuring him.

Plaintiff sued Apex, Shockley, Lee, and Humbert. In various divisions of his petition, plaintiff alleged negligence on the part of defendants individually and in combination. In addition, plaintiff charged Apex with liability for the negligence of Shockley, of Lee, and of Humbert as alleged agents of Apex.

At the conclusion of the evidence, the trial court directed verdicts for Apex on plaintiff's claims against it founded on the negligence of Lee and Humbert; the court held plaintiff did not introduce substantial evidence that Lee and Humbert were agents of Apex. The court submitted to the jury plaintiff's claims against each of the defendants based upon the alleged negligence of each defendant and also, as to Apex, based upon the alleged negligence of Shockley as the employee of Apex.

The jury awarded plaintiff damages of Lee and Humbert, but found Shockley and Apex not liable.

In this appeal, plaintiff claims the trial court erred in directing a verdict for Apex on plaintiff's claim that Apex is liable for the conduct of Lee and Humbert, and also in giving certain instructions to the jury.

I. Liability of Apex for Conduct of Lee and Humbert. Plaintiff asserts on three grounds the trial court erred in directing a verdict for Apex on plaintiff's claim that Apex is liable for the conduct of Lee and Humbert.

A. Plaintiff first argues that Apex is liable for negligence of Lee or Humbert under the motor vehicle owner liability statute, § 321.493, Code 1975.

We find no indication in the record that the plaintiff asserted this theory in the trial court. Plaintiff did not mention this basis of liability in his petition but alleged, rather, that Lee and Humbert were agents of Apex. At trial, plaintiff objected to the trial court's failure to instruct on § 321.493 but only in connection with the responsibility of Apex for the negligence of Shockley, its truck driver. Plaintiff's post-trial alternative motions for judgment notwithstanding verdict or new trial did not assert the statute. Under these circumstances we do not consider this theory; plaintiff presents nothing for review. Aetna Cas. & Sur. Co. v. Jewett Lumber Co.,209 N.W.2d 48, 50 (Iowa); Berhow v. Kroack, 195 N.W.2d 379, 382 (Iowa).

B. In another division of his brief, plaintiff claims that in its answer Apex failed to deny effectively his allegations of Lee and Humbert's agency for Apex; hence such allegations must be taken as true.

In his petition, plaintiff alleged that Lee and Humbert were agents of Apex. In its answer, Apex denied the allegation. Rule 98 of the Rules of Civil Procedure states Partnership, corporate or Representative capacity; or corporate authority to sue or do business in Iowa; or performance of conditions precedent; or judgments of a court, board or officer of special jurisdiction, may be pleaded as legal conclusions, without averring the facts comprising them. It shall not be sufficient to deny such averment in terms contradicting it, but the facts relied on must be stated. (Italics added.)

Plaintiff asserts that by alleging Lee and Humbert's agency he alleged 'representative capacity' within rule 98; that the rule required Apex to state 'the facts' relied on in denying agency; that the denial of agency by Apex was thus ineffective; and that the allegation of agency therefore stood admitted.

We believe the term 'representative capacity' in rule 98 relates to capacity to sue or be sued, not to an agency relationship relied upon to impose vicarious liability. The cases decided under the predecessor statutes of the rule deal with the capacity to sue or be sued of conservators, Ross v. Long, 219 Iowa 471, 258 N.W. 94; trustees, Windsor v. Barnett, 201 Iowa 1226, 207 N.W. 362; assignees, Fransham v. Tow Bros., 196 Iowa 1082, 196 N.W. 71; administrators, Mayes v. Turley, 60 Iowa 407, 14 N.W. 731, and receivers, Goodhue v. Daniels, 54 Iowa 19, 6 N.W. 129.

Rule 98 was derived in part from § 11207, Code 1939:

A plaintiff suing as a corporation, partnership, executor, guardian, or in any other way implying corporate, partnership, representative or other than individual capacity, need not state the facts constituting such capacity or relation, but may aver the same generally, or as a legal conclusion, and where a defendant is held in such capacity or relation a plaintiff may aver such capacity or relation in the same general way.

Section 11208 required denials of such averments to state the facts relied upon. These predecessor statutes deal with the capacity of a representative to sue or be sued. See also rule 9(a), Federal Rules of Civil Procedure.

Further support for this view of 'representative capacity' in rule 98 is found in rule 20, R.C.P.:

When any public official, or any administrator, express trustee Or other person in a representative capacity, ceases to be such while a party to a suit, the court may order his successor brought in and substituted for him. (Italics added.)

Rule 98 allows general averments of capacity as conservator, trustee, and so on because such capacity is seldom in issue. On the other hand, agency as a foundation of liability for the acts of another is, as in this case, often hotly disputed. We hold the denial by Apex of agency relationship placed plaintiff's allegation of agency in issue.

C. Plaintiff argues finally in this part of the appeal that plaintiff adduced substantial evidence Lee and Humbert were agents of Apex; hence the trial court erred in taking the agency issue from the jury. See Schneberger v. Glenn, 176 N.W.2d 782, 784 (Iowa). In ruling on this argument we view the evidence in the light most favorable to plaintiff. Rule 344(f)(2), R.C.P.

The evidence shows beyond question that workers at construction sites customarily direct and assist cement truck drivers in backing and positioning their vehicles; that Lee told drivers of Apex where to dump their loads; that Shockley enlisted Lee's assistance in dumping the load involved here; that Lee got Humbert to help; and that Lee and Humbert gave directions to Shockley and helped position the chute. Was the question of an agency relationship of Lee and Humbert for Apex for the jury under this record?

Lee and Humbert were employees of Reed. Plaintiff asserts that when Lee and Humbert helped Shockley, they became employees of Apex. Cases dealing with the 'borrowed servant rule' thus come into play.

The general rule is that '(a) servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services.' Restatement, Agency 2d, § 227. This court has recognized the rule. Hassebroch v. Weaver Const. Co., 246 Iowa 622, 67 N.W.2d 549; Miller v. Woolsey, 240 Iowa 450, 35 N.W.2d 584; Anderson v. Abramson, 234 Iowa 792, 13 N.W.2d 315; Kanipe v. Grundy County Rural Electric Co-op., 231 Iowa 187, 300 N.W. 662; Ash v. Century Lumber Co., 153 Iowa 523, 133 N.W. 888.

In the absence of evidence to the contrary, the inference is that an employee remains in his original employment. See Hassebroch v. Weaver Const. Co., supra, 240 Iowa at 633, 67 N.W.2d at 556; Anderson v. Abramson, supra, 234 Iowa at 794, 13 N.W.2d at 316; Restatement, Agency 2d, § 227, Comment B at 501; 53 Am.Jur.2d Master & Servant § 415 at 428.

In addition, a servant of one master will be held to have become the servant of another master only insofar as the latter has the right to control and direct the servant's activities. Anderson v. Abramson, supra, at 794,13 N.W.2d at 316; Kanipe v. Grundy County Rural Electric Co-op., supra, at 192, 300 N.W. at 665; Ash v. Century Lumber Co., supra, at 533, 133 N.W. at 892; 53 Am.Jur.2d Master & Servant § 415 at 425. As the Court stated in the leading case on this subject, Standard...