Charter Builders, Inc. v. Sims Crane Service, Inc.

• Decision Date: 23 May 1979
• Docket Number: No. 57686,57686
• Citation: 256 S.E.2d 678,150 Ga.App. 100
• Parties: CHARTER BUILDERS, INC. v. SIMS CRANE SERVICE, INC. et al.
• Court: Georgia Court of Appeals

Page 678

256 S.E.2d 678

150 Ga.App. 100

CHARTER BUILDERS, INC. v. SIMS CRANE SERVICE, INC. et al.

No. 57686.

Court of Appeals of Georgia.

Argued April 10, 1979.

Decided May 23, 1979.

Fulcher, Hagler, Harper & Reed, Gould B. Hagler, David H. Hanks, Augusta, for appellant.

Hull, Towill, Norman, Barrett & Johnson, Patrick J. Rice, David B. Bell, Stanley G. Jackson, Augusta, for appellees.

CARLEY, Judge.

Resolution of the issues raised by this appeal necessitates a lengthy recitation of the underlying facts. The appellant, Charter Builders, was the general contractor for the erection of a department store building. In June of 1977 it contracted with the appellee, Sims Crane, for the lease of a crane and a crane operator. The lease agreement contained the following provision:

"Lessee (Charter) agrees to indemnify and save Lessor (Sims), its employees and agents harmless from all claims for death or injury to persons, including Lessor's (Sims') employees, and from all loss, damage or injury to property, including the Lessor's (Sims') equipment, arising in any manner out of Lessee's (Charter's) operation . . . Lessee (Charter) shall not be required to indemnify Lessor (Sims) for Lessor's (Sims') sole negligence . . ."

Shortly thereafter, an employee of Charter was injured in an accident involving the crane. The employee brought suit against Sims, the allegations being that his injuries resulted from a defect in the crane itself or from the negligent operation thereof. Sims answered this suit and subsequently filed a third-party complaint against Charter based upon the indemnification provision contained in the lease agreement. Both Sims and Charter moved for summary judgment as to the issues raised as a result of the impleading of Charter by Sims.

A hearing was held and the court denied Charter's motion and found "that Sims, under the terms of said written indemnity, is entitled to a summary judgment against Charter on the question of the latter's obligation to indemnify under the facts of this case." The court, therefore, granted Sims' motion and ordered "that Charter indemnify Sims against any and all losses, damages and injuries allegedly experienced by the Plaintiff herein and for which the Plaintiff recovers in his action against Sims, including, as provided in said written indemnity, all court costs and attorney's fees."

Charter appeals from this grant of summary judgment to Sims. We reverse.

1. It is clear that enforcement of indemnity provisions such as the one here in question turns on the issue of negligence, for the only limitation on the indemnitor's liability is where the loss or injury results from the sole negligence of the indemnitee, see generally Ga. Ports Authority v. Central of Ga. R. Co., 135 Ga.App. 859, 864, 219 S.E.2d 467 (1975); or, in other words, if the loss or injury is attributable, even partly, to the negligence of the indemnitor, the obligation to indemnify arises. See generally Benson Paint Co. v. Williams Const. Co., 128 Ga.App. 47, 50, 195 S.E.2d 671 (1973).

Here the burden was on Sims, the third-party plaintiff, as movant for summary judgment to establish there was no genuine issue of material fact that the injury to the plaintiff was not the result of its sole negligence or, stated in the affirmative, that the negligence of Charter, the indemnitor, was somehow involved in the injury.

This burden is a great one for, as a general proposition, issues of negligence are not susceptible of summary adjudication but should be resolved by trial in the ordinary manner. Wakefield v. A. R. Winter Co., 121 Ga.App. 259, 260, 174 S.E.2d 178 (1970). The trial court can conclude as a matter of law that the facts do or do not show negligence only where the evidence is plain, palpable and undisputable. Powell v. Berry, 145 Ga. 696, 701, 89 S.E. 753 (1916); Ellington v. Tolar Const. Co., 237 Ga. 235, 237, 227 S.E.2d 336 (1976).

Appellee Sims, however, urges that "plain, palpable and undisputed" evidence establishes that it was Charter's negligence (and, therefore, cannot be its (Sims') "sole negligence") which resulted in the plaintiff's injuries, and that summary judgment requiring Charter to indemnify was thus properly granted.

Appellee Sims alleges that the record clearly establishes Charter's "active" negligence in supervising the job, resulting in improper use of the crane by the injured plaintiff-employee. We are cited to Benson Paint Co. v. Williams Const. Co., 128 Ga.App. 47, 195 S.E.2d 671, supra, for the proposition that such a duty to supervise was owed by Charter. Review of that case, however, reveals that the "duties" of the parties had been established by contract; such is not the case here. Suffice it to say that we have thoroughly and carefully examined the record on appeal and do not find "the undisputed facts (to) be so clear as to leave no room for a jury to find save one way" that Charter's conduct in this matter was somehow negligent and that that negligence resulted in plaintiff's injury. Powell v. Berry, 145 Ga. 696, at 701, 89 S.E. 753, at 756, supra.

Sims next urges that the evidence establishes the contributory negligence of the injured employee which must be imputed to Charter as the employer. The evidence of the employee's actions is undisputed but does not, we believe, establish "plain and palpable" negligence on his part.

"Even where there is no dispute as to the facts, it is, however, usually for the jury to say whether the conduct in question met the standard of the reasonable man. (Cit.)" Wakefield v. A. R. Winter Co., 121 Ga.App. 259, 260, 174 S.E.2d 178, 179, supra. See also McCurry v. Bailey, 224 Ga. 318, 162 S.E.2d 9 (1968); Wynne v. Southern Bell Tel. & Tel. Co., 159 Ga. 623, 126 S.E. 388 (1925).

We, therefore, conclude that insofar as the trial court's grant of summary judgment to Sims was based upon a summary adjudication of Charter's alleged negligence, it was erroneous. "Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication. (Cit.)" Russell v. Goza, 143 Ga.App. 455, 456(1), 238 S.E.2d 583, 584 (1977).

2. Appellee Sims argues that the evidence demonstrates that the crane operator was Charter's "borrowed servant," that any negligence in the operation thereof would, therefore, be imputed as a matter of law to Charter, the "special master," and not to it, the "general master," and that any question of its negligence has thus been eliminated from the case. We do not agree for two reasons.

( a) First, the evidence does not, as alleged, conclusively establish that the crane operator was Charter's "borrowed servant." The burden was on Sims as movant for summary judgment to show that each and every one of the following requirements was met: (1) that Charter had complete control and direction of the crane operator for the occasion; (2) that it (Sims) had no such control; and (3) that Charter had the exclusive right to discharge the operator, to put another in his place or to put him to other work. See, e. g., Fulghum Industries v. Pollard Lumber Co., 106 Ga.App. 49, 52, 126 S.E.2d 432 (1962) and cits.

While the evidence tends to show that Charter did in fact exercise control and direction...