Currier v. Abbott

• Citation: 185 A.2d 263,104 N.H. 299
• Parties: Reginald CURRIER v. Roy C. ABBOTT. Roy C. ABBOTT et al. v. Reginald CURRIER.
• Decision Date: 31 October 1962
• Court: Supreme Court of New Hampshire

Page 263

185 A.2d 263

104 N.H. 299

Reginald CURRIER v. Roy C. ABBOTT.

Roy C. ABBOTT et al. v. Reginald CURRIER.

Supreme Court of New Hampshire.

Argued Sept. 5, 1962.

Decided Oct. 31, 1962.

Wiggin, Nourie, Sundeen, Nassikas & Pingree and Dort S. Bigg, Jr., Manchester, for Currier.

Devine, Millimet & McDonough, Shane Devine, Manchester, for Abbott and Hutchins.

DUNCAN, Justice.

A major issue presented by these actions relates to instructions to the jury as to the respective liabilities of Currier and Abbott for the conduct of Pratt, the operator of the Currier truck. This truck, with the driver, was rented by Currier to Abbott. Both Currier and Abbott were general contractors. Abbott was engaged under a contract with the State in rebuilding a section of the highway known as Route 10 between Hanover and Lyme. At the time of the accident Pratt was engaged in hauling gravel from a gravel pit to the construction site in the truck owned by Currier. Hutchins was similarly engaged in the truck owned by Abbott.

Pratt was proceeding southerly and somewhat downgrade along a gravel-surfaced section of the highway under construction. The total weight of his vehicle and load was from seventy to eighty thousand pounds. Hutchins was proceeding in the opposite direction, in an empty truck weighing about 38,000 pounds. After the accident the two vehicles were in contact with each other on the westerly side of the highway. Their tracks on the gravel surface were largely obscured soon after the collision by a heavy downpour of rain and the roadway was thereafter scraped by a bulldozer to permit traffic to pass.

Pratt was instantly killed in the collision. Hutchins was seriously injured and at the trial was able to recall little of the events immediately preceding the collision. The only other eye-witness to testify had been traveling behind the truck driven by Pratt. She testified that before the collision the northbound truck driven by Hutchins 'swerved slightly to his left,' and that the truck driven by Pratt appeared to be on its own side of the road. It could be found from her testimony that immediately after the collision the trucks were on the westerly side of the highway in the positions shown by photographs in evidence.

There was other evidence that parts of the trucks and some gravel were found on the easterly side of the road some distance north of where the vehicles came to rest. It was the contention of Abbott and Hutchins that the collision occurred at this point on the easterly side of the road.

The evidence was undisputed that Pratt was employed by Currier and hired out to Abbott with Currier's truck. Currier was paid by Abbott for Pratt's time as driver at rates established by the State. Currier in turn paid Pratt for the same time but at a somewhat higher rate, and for other time in maintenance and care of the truck at a somewhat lower rate.

There was no written agreement between Currier and Abbott with respect to the transactions between them. Currier was in the business of renting trucks and drivers, and Pratt was a skilled and competent driver operating a heavy and costly truck. Abbott operated trucks of his own, and hired other trucks and drivers from Currier and from other persons. Abbott concededly had the right to direct Pratt as to where to load the gravel and where to dump it. There was evidence that he determined when work should stop or suspend because of weather or other conditions. He testified that 'if somebody didn't measure up' he had no hesitation to tell them what to do. He himself was present on some part of the job at all times during the operations.

It appeared that Currier gave his drivers general instructions concerning the maintenance and operation of his trucks, and visited the job occasionally to talk with Abbott or his own drivers. It could be found upon the evidence that he could have taken a truck or driver off the job or substituted drivers, at will, and that Abbott likewise could have put both truck and driver off the job, but could not discharge one of Currier's drivers, or put him off the job and continue to use Currier's truck. There was no understanding that the trucks and drivers were hired for any particular period, or to haul any particular quantity of gravel, or to complete any particular part of the hauling.

From the facts of the case it is readily apparent that it draws in question the law relating to borrowed servants, a field which has been described as a 'battle * * * of terminology, raging in a verbal wilderness.' Smith: Scope of the Business: The Borrowed Servant Problem, 38 Mich.L.Rev. 1222, 1232. In this case the 'battle' commenced over language appearing in Indemnity Insurance Co. of North America v. Cannon, 94 N.H. 319, 52 A.2d 855. In argument to the jury, counsel for Currier stated the law without objection in the language of the quotation appearing in that case but substituting 'may' for 'must' in the first sentence, as follows: 'When one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment may be dealt with as a servant of the man to whom he is lent, although he remains the general servant of the person who lent him. In other words Pratt, the employee of Currier generally speaking, may for a particular purpose on a particular occasion be an employee and servant of Abbott, even though he continues to be the general employee of Mr. Currier and is paid by Mr. Currier for his work.'

In instructing the jury the Trial Court relied upon the same language substituting the word 'may' for the word 'must' as did counsel. Although Abbott and Hutchins recognized that the Trial Court had made the substitution in the language of the Cannon case, they excepted to the instructions upon the ground that they were 'incomplete and inaccurate,' and that in the Cannon case the servant was operating an automobile owned by the special employer rather than the general employer. They also excepted to the denial of their first request for instructions, which would have charged the jury that 'there is an inference' that Pratt remained in the employment of Currier 'in the absence of contrary evidence,' and would have instructed them that certain factors appearing in evidence indicated that Pratt remained in the employment and control of Currier while working for Abbott.

In our opinion these exceptions present no ground for reversal. Factual differences between the Cannon case and this one justified if they did not compel the Court's modification of the language of the Cannon case. 'Servant Lent to Another Master. A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services. He may become the other's servant as to some acts and not as to others.' Restatement (Second), Agency, s. 227. Upon the evidence in this case it could not be said that whatever Pratt did while hired out to Abbott 'must' as a matter of law be considered done in the service of Abbott. Restatement, supra, s. 227, comment a. On the other hand Pratt's work was the type of work customarily performed by Abbott and his servants, and being performed by them at that time. It could be found upon the evidence that Abbott rightfully directed and controlled something more than just the end result to be achieved by Pratt; and that Currier as Pratt's general employer lacked 'any effective spot control over the * * * details of the work.' 2 Harper & James, Law of Torts, 1401. To the extent that the instructions utilized language from the Cannon case, there was no error.

In cases where a vehicle...