Clark v. Luther McGill, Inc., 41715

• Decision Date: 13 March 1961
• Docket Number: No. 41715,41715
• Citation: 240 Miss. 509,127 So.2d 858
• Parties: Archie B. CLARK v. LUTHER McGILL, INC.
• Court: Mississippi Supreme Court

Page 858

127 So.2d 858

240 Miss. 509

Archie B. CLARK v. LUTHER McGILL, INC.

No. 41715.

Supreme Court of Mississippi.

March 13, 1961.

Wm. Vol Jones, Jr., Waynesboro, W. S. Murphy, Lucedale, for appellant.

Beard, Pack & Ratcliff, Laurel, for appellee.

GILLESPIE, Justice.

C. A. Hurst Drilling Company, hereinafter called Hurst, is a drilling contractor engaged in the business of drilling oil wells and in connection therewith furnishes its own drilling rig and employs several drilling crews consisting of four men each in charge of a driller. The men under the driller are known as rough necks, and the superintendent in charge of the drilling crews is known as the tool pusher. When the rig is to be moved to a new location, Hurst contracts with a hauler who moves the heavy equipment to the new location. Luther McGill, Inc., appellee here, hereinafter called McGill, is such hauler and was engaged by Hurst to move Hurst's heavy equipment to a new location. Under the arrangements with Hurst, McGill moved all the heavy machinery and equipment and placed it at the exact location where the new well was to be drilled, after which Hurst's men would take over. The details of the contract between McGill and Hurst was not shown.

McGill had moved to the new location two steel substructures, each of which was about thirty feet long, four feet wide, nine feet high, and weighing about ten tons. These two substructures were to be placed by McGill at the proper location and in proper relation to each other and connected with appropriate beams. The drilling rig is thereafter placed on the substructures thus located and put together. McGill had control of the hauling of this heavy equipment from the old location to the new one and the placing of the substructures at the new location. McGill furnished its own trucks, cables, chains, and other equipment used in this operation. It also employed its own help in the operation and carried workmen's compensation insurance.

The plaintiff below, appellant here, Archie B. Clark, was the general employee of Hurst. His job was that of rough neck. Appellant had helped McGill's truck driver in placing the first substructure in its proper place. Appellant then walked over to a nearby place and talked to Murray, who was Hurst's driller and appellant's immediate superior, while an employee of McGill, who was McGill's truck driver's helper, 'bridled' the second substructure by attaching the cable and chain thereto so that McGill's gin-pole truck could hoist the second substructure into place. The proper way to bridle the substructure was to run the cable under it in the center and to use a chain to balance it. The proper function of the chain was to balance or guide the substructure rather than lift it. It was the function of the cable to bear the main weight of the substructure with the chain bearing only the difference if the two ends were not balanced. McGill's swamper improperly bridled the second substructure by rigging it so that the chain bore the weight of the substructure instead of merely guiding or balancing it. This second substructure had several tons of pipe in it so that the entire weight was about fourteen tons. Appellant did not see how the substructure was bridled because he was at another place talking to his driller, but went over to the substructure about the time it was rigged up so that he could render any assistance that McGill's men might need. McGill's truck driver told appellant to get on one end of the substructure in order to balance it. Appellant did so and sat down on the lower beam thereof and when McGill's truck driver raised the substructure four or five feet off the ground the chain broke and the substructure fell with appellant on it. Appellant was seriously injured. There is no contention here that McGill's employees, the truck driver and swamper (or helper), were not negligent--the swamper for improperly bridling the substructure, and the truck driver for raising it when it was improperly bridled.

After appellant's injury he was paid workmen's compensation benefits by Hurst's compensation carrier and after about eight months, a lump sum settlement was consummated between appellant and Hurst's compensation carrier. Then appellant brought this suit against Luther McGill, Inc., appellee here. When the case came on for trial, the trial judge entered a directed verdict for appellee McGill, and appellant appealed to this Court.

The first and principal question for decision is whether appellant was at the time he was injured the employee of appellee, Luther McGill, Inc., for if he was the relationship of master and servant existed between them and under the provisions of the Workmen's Compensation Act appellant's exclusive remedy was under the provisions of that Act.

Section 6998-05, Mississippi Code of 1942, is, in part, as follows: 'Exclusiveness of Liability. The liability of any employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee * * *.'

Section 6998-02, Mississippi Code of 1942, defines an employee as '* * * any person * * * in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied.'

When at the conclusion of plaintiff's case a motion is made to exclude the evidence and direct a verdict for defendant, the court must look solely to the testimony in behalf of plaintiff and accept that testimony as true; and if the facts testified to, along with reasonable inferences which could be drawn therefrom, would support a verdict for plaintiff, the directed verdict should not be given. Williamson v. Inzer, Miss., 125 So.2d 77. The facts in this case relating to whose employee appellant was when he was injured, when stated in the light of the foregoing rule, are as follows. Appellant was hired by Hurst and no one could fire him except Hurst's driller, appellant's immediate superior. He was paid by Hurst. According to custom, the rough necks of the drilling crew usually assisted the hauling contractor in setting the substructures when moving to a new location, and this was done in furtherance of Hurst's business, since it enabled the substructures to be set quicker, thus saving time. This assistance was a minor part of the moving operation for which McGill in this case was responsible, and what appellant did in this instance was in the nature of lending a helping hand to McGill's employees. Appellant was under the immediate control of McGill's truck driver to the extent he complied with the truck driver's instruction to get on the substructure to balance it, but there is nothing in the record requiring a finding that appellant consented to become the employee of McGill or that Hurst ever relinquished the supreme choice, control, and direction of appellant. McGill had the immediate control of the operation of locating and setting the substructures, but the general control of the premises was in Hurst, the substructures belonged to Hurst, and the work of locating and setting the substructures was, as to the final result and in all its detail, the work of Hurst.

Larson has a helpful discussion of the lent-employee problem. Section 48.10, Volume 1, Larson's...