Christiansen v. McLellan

• Decision Date: 14 July 1913
• Parties: CHRISTIANSEN v. McLELLAN.
• Court: Washington Supreme Court

133 P. 434

74 Wash. 318

CHRISTIANSEN v. McLELLAN.

Supreme Court of Washington

July 14, 1913

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Oliver Christiansen, an infant, by Christian Christiansen his guardian ad litem, against F. McLellan. Judgment for plaintiff, and defendant appeals. Affirmed.

Where plaintiff was hired to drive a team which his employer let to defendant at a certain price per day, and defendant had control of the team, plaintiff, for anything done in that particular employment, was the servant of defendant, though remaining the general servant of his own employer.

In a servant's action for personal injuries while driving upon an embankment to dump a load of earth, the opinion of certain expert witnesses as to whether or not the grade over which plaintiff was directed to drive was reasonably safe for that purpose was admissible.

John W Roberts and Geo. L. Spirk, both of Seattle, for appellant.

Arctander, Halls & Jacobsen, of Seattle, for respondent.

FULLERTON J.

In the year 1911, the appellant, McLellan, had a contract with the city of Seattle to grade and otherwise improve parts of certain streets therein, included in which were parts of Battery and Elliott streets. Elliott street had been filled up to grade where it crossed Battery street, leaving an abrupt embankment of a considerable height between the surface of the streets. The improvement required the filling of Battery street at this point, and work was commenced thereon by hauling and dumping earth on the edge of the embankment on Elliott street and shoveling it from there into the street to be filled. After the fill reached a certain height the foreman directed the teamsters hauling the dirt to drive over the embankment onto the fill and dump the loads as they passed down the same. The respondent was driving one such wagon, and on driving onto the dump with a load of earth his wagon overturned, falling upon him and severely injuring him. He brought the present action to recover for the injuries suffered. At the trial the jury returned a verdict in his favor for $1,500. From the judgment entered thereon this appeal is taken.

The appellant first contends that the relation of master and servant did not exist between himself and the respondent, and hence the respondent cannot predicate a right of recovery against him on the liabilities growing out of that relation. The contention that the respondent was not the appellant's servant is founded on the fact that the team and wagon was owned by one Rennie, who hired the respondent to drive the same, and then let the team, wagon, and driver to the appellant at a given consideration per day. But the respondent was the servant of the person under whose direction and control he was at the time he was injured. As was said in Coughlan v. Cambridge, 166 Mass. 268, 44 N.E. 218: 'It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service so as to become, as to that service, the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is let or hired.' And this court in Wiest v. Coal Creek R. Co., 42 Wash. 176, 84 P. 725, speaking through Judge Dunbar, said: 'But the law is well established that when one person lends his servant to another for a particular employment, the servant for anything done in that particular employment must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.'

There is evidence in the record from which the jury could find that the respondent while engaged in hauling the earth was under the direction and control of the appellant. Since therefore the court submitted the question to the jury, under instructions to which no complaint is made, their finding is conclusive upon the question.

It is next contended that the rule requiring the master to provide his servant with a safe place in which to work has no application to the facts shown in this record, for the reason that the place of work was constantly changing...