Cloughley v. Orange Transp. Co.

• Decision Date: 02 July 1958
• Docket Number: No. 8573,8573
• Citation: Cloughley v. Orange Transp. Co., 327 P.2d 369, 80 Idaho 226 (Idaho 1958)
• Parties: J. Russell CLOUGHLEY, Plaintiff-Respondent, v. ORANGE TRANSPORTATION CO., a corporation, and Keith Park, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 369

327 P.2d 369

80 Idaho 226

J. Russell CLOUGHLEY, Plaintiff-Respondent, v. ORANGE TRANSPORTATION CO., a corporation, and Keith Park, Defendants-Appellants.

No. 8573.

Supreme Court of Idaho.

July 2, 1958.

Rehearing Denied July 29, 1958.

Merrill & Merrill, Pocatello, for appellants.

Holden, Holden & Kidwell, Idaho Falls, for respondent.

TAYLOR, Justice.

September 2, 1954, plaintiff (respondent) was an employee of Detweiler, Inc., contractor for certain construction work at the Atomic Energy Commission's National Reactor Testing Station in Jefferson County, west of Idaho Falls. Vernon C. Pearcy was the mechanical superintendent of Detweiler, Inc., at the job site. Keith Park, defendant (appellant), was regularly employed as a truck driver by Orange Transportation Co., defendant (appellant).

Detweiler, Inc., c/o Arrington Construction Co., was consignee of a shipment of two boilers, each weighing approximately 13,500 pounds, crated. The shipper routed the shipment, prepaid, f. o. b. job site, by way of Consolidated Freightways to Idaho Falls and then by way of Orange Transportation Co. to the job site. The shipment was delivered to the job site September 2, 1954, by defendant Park as driver of an Autocar diesel tractor belonging to defendant Orange Transportation Co., pulling the Consolidated Freightways' semi-trailer, upon which the boilers were loaded. The tractor and trailer are referred to as the 'truck'.

When Park arrived at the job site he presented the motor freight bill of Orange Transportation Co. to Mr. Pearcy, who signed it, acknowledging receipt of the boilers and parts. Pearcy then told Park where to place the trailer, stating he had made arrangements for a crane to unload the boilers and that the crane would arrive in about thirty minutes. When the crane arrived it was placed in position on the right hand side of the trailer, opposite the rear boiler. Pearcy directed plaintiff to go up on top of the boiler and connect cables attached to the boiler to the hook on the crane, and to remain on top of the boiler or trailer to watch the operation from that point. It was arranged between Park and Mr. Pearcy that Park would operate the truck during the unloading, the plan being to raise the boiler by means of the crane, then drive the truck from under the boiler and lower it to the ground. Pearcy advised Park that he would station himself near the rear of the truck and by means of signals, which Park was to observe through his rearview mirror, indicate to Park when to move forward and when to stop. When the rear boiler was raised, Pearcy signalled Park to move the truck, which Park did. The boiler became wedged in the trailer and as the truck moved forward--five to twelve feet, according to different witnesses--it flexed the boom of the crane laterally in the direction of the movement. Under this stress the boom collapsed and fell across the top of the boilers and trailer at an angle such that the tip of the boom extended beyond the front end of the trailer. Plaintiff had taken a position at the front of the trailer and as the boom collapsed he jumped to the ground to avoid being struck by the falling boom.

Plaintiff brought this action to recover damages for injuries he suffered as a result of the jump. The right of action is based upon the alleged negligence of Park, acting as agent and servant of the Orange Transportation Co., in failing to halt the forward motion of the truck upon the signal of Pearcy so to do.

As an employee of Detweiler, Inc., plaintiff was entitled to, and was paid, benefits under the Workmen's Compensation Law. I.C. § 72-101 et seq. Defendants contend that, while driving the truck to assist in the unloading, Park was a loaned servant and employee of Detweiler, Inc., and that workmen's compensation is plaintiff's sole and exclusive remedy. This is the controlling question presented.

In his original complaint, verified by himself, plaintiff alleges:

'That said Vernon C. Pearcy was stationed at the left rear of said truck-trailer and said defendant, Orange Transportation Company, by and through its agent and employee, Keith Parks, the driver of said truck-trailer was directed and instructed by Detweiler, Inc., to maintain a look-out through the rear-vision mirror located on the left side of said truck for stop and go hand signals, to be given by said Vernon C. Pearcy after said crane had lifted said boiler'.

After a general demurrer was sustained to the original complaint, plaintiff filed an amended complaint, alleging:

'* * * in order for defendants to deliver said boilers it was necessary for the defendants to utilize a crane, and they did utilize a crane, to raise said boilers one at a time a few inches above the bed of said truck-trailer to permit the said defendant, Keith Parks, to drive said truck-trailer out from under said boiler so raised as aforesaid, thus permitting said crane to lower said boiler to the ground.

'That the said Vernon C. Pearcy was instructed by the said defendant, Keith Parks, to station himself at the left rear of said truck-trailer to signal the said defendant, Keith Parks, during the unloading operation; * * *.'

In their answer, defendants allege:

'That in order to unload said boilers, the said Detweiler, Inc., a corporation, through its agent, Vernon C. Pearcy, engaged the services of Keith Park and requested that he drive said truck-trailer from under the boilers as they were lifted therefrom, and gave instructions to the said Keith Park as to how to carry out this objective, and the said Keith Park thereupon became and continued to be the agent of Detweiler, Inc., a corporation, when the said accident occurred, and that at said time he was not the servant, agent or employee of Orange Transportation Company, * * *.'

We have held that an admission made in a pleading is binding on the party making it. Smiley v. Smiley, 46 Idaho 588, 269 P. 589; Weed v. Idaho Copper Co., 51 Idaho 737, 10 P.2d 613; Peterson v. Universal Automobile Ins. Co., 53 Idaho 11, 20 P.2d 1016. In those cases the admissions were made in pleadings upon which the causes were tried. The rule perhaps would not be applied to a superseded pleading. In any event, the superseded pleading is competent evidence against the party making the admission. The pertinent part of the original complaint was admitted in evidence.

The trial resulted in a verdict and judgment in favor of plaintiff, and defendants brought this appeal from the judgment and from the order denying their motions for new trial and for judgment notwithstanding the verdict.

The evidence shows that Mr. Pearcy, acting for Detweiler, Inc., rented the crane and its operator from Arrington Construction Co., and took charge of and directed the activities of those engaged in the unloading operation, including the defendant Park. The testimony of Mr. Pearcy, himself, is to this effect.

On direct examination, referring to a conversation with Park just prior to the attempted unloading:

'A. I think also Mr. Cloughley was present at this conversation. The conversation was to--in order to form some procedure to unload the boilers with, what we were intending to do and how we were going to do it.

'A. Yeah, we had a conservation with him--I had a conversation with him myself explaining to him as to how we was going to set the truck, where we was going to set the boilers--I mean to unload the boilers at the area itself. He had left the truck parked on the road when he come in, and I had--or he had asked me where we were going to unload these boilers, so I did designate the spot where we was going to unload these boilers.

'A. Mr. Hodges, the operator of this truck (sic) set up his crane--the operator of the crane, rather, put his outriggers on, and Mr. Cloughley, who was with me at the time, was instructed by me to rig the boiler with certain cables and equipment that we had to lift the boilers, and he did so.'

'A. The only thing I told him I would stand by at the left, at the driver's side at the rear, and do the signalling myself.

'Q. Did he ask for any signalling? A. I just don't remember, sir, whether he did or not, but I am sure that I told him I would signal him through his rearview mirror.

'A. As I say before, Mr. Hodges had raised the boiler approximately six to eight inches off the floor of the truck, and I gave--I asked them, as I say, I asked Mr. Cloughley if he was ready, and also Mr. Hodges if he was ready, and they both said yes that they were, so I gave Mr. Parks the signal to pullahead, to pull out from underneath the boiler.

'A. The agreement he and I did have, that I would signal him to stop and start the truck, as I explained before in my testimony.

'Q. And did the agreement include what he was to do? A. He was to drive the truck, sir.'

On cross-examination:

'Q. The facts are that he was to receive a signal by the arm from you? A. That's right, yes sir.

'Q. And when you gave it he started? A. Yes sir.

'Q. And he was to receive a signal by the arm--A. To stop. * * * I secured the boom from Mr. Arrington.

'Q. Arrington, I mean, the Arrington Construction Company? A. Yes sir.

'Q. For use by the Detweiler Company to lift these trucks--these boilers off the truck? A. That is right.

'Q. Yes. Then you directed Mr. Park to go ahead when you gave a signal, and to stop when you gave a signal, didn't you? A. That's right, sir.

'Q. Yes. And he did that at your request? A. He didn't stop quick enough, sir, at my request.

'Q. But he moved and went at your request, didn't he? A. He moved and went at my request, yes sir.

'Q. You were directing the affairs of the company at the time, of the Detweiler Company, weren't you, acting as their agent? A. I was acting as their agent, yes sir, * * * acting as their superintendent.

'Q. And you knew that it was Detweiler Company that was unloading the boilers, you knew that? A. Yes sir, I knew that.

'Q. Sure. And so you undertook under those circumstances to unload that...