Davis v. Early Const. Co.

• Decision Date: 21 November 1963
• Docket Number: No. 36413,36413
• Citation: 63 Wn.2d 252,386 P.2d 958
• Court: Washington Supreme Court
• Parties: Conklin DAVIS, Respondent, v. EARLY CONSTRUCTION COMPANY, a corporation, Appellant.

Page 252

63 Wn.2d 252

386 P.2d 958

Conklin DAVIS, Respondent, v. EARLY CONSTRUCTION COMPANY, a corporation, Appellant.

No. 36413.

Supreme Court of Washington, Department 2.

Nov. 21, 1963.

Lycette, Diamond & Sylvester, John P. Lycette, Jr., Seattle, for appellant.

Walthew, Warner & Keefe, Robert H. Thompson, Seattle, for respondent.

HAMILTON, Judge.

Plaintiff (respondent), while engaged in extrahazardous employment, sustained personal injuries. Relying upon RCW 51.24.010, ¹ he instituted suit against defendant (appellant) alleging third party negligence. A jury trial ensued. Defendant appeals from an adverse verdict and judgment.

On the morning of December 1, 1959, plaintiff was employed by the B & B Glass Company, of Tacoma, Washington (hereafter referred to as B & B), to assist in unloading a freight car of glass. The glass was packed in narrow crates, approximating 6 by 10 feet in size and weighing up to 1,500 pounds each. One of the crates fell on plaintiff, producing the injuries involved.

Defendant, pursuant to an oral request from the president of B & B, furnished a fork lift and two men to assist in the unloading operation. The parties disagree as to the employment status of the men, particularly the one operating the fork lift. Plaintiff contends the men were at all times employees of defendant. Defendant contends they became the loaned servants of B & B.

At and in the freight car, where the accident in question occurred, four men participated in unloading the crates--plaintiff, another employee of B & B, one of the men furnished by defendant, and the fork lift operator. At the time of the accident, the B & B employee was absent.

Removal of a crate from the freight car was accomplished by standing it on edge, fastening a chain around each end, hooking an open hook from the lift to the slack chain between the ends, raising the crate slightly, positioning a man at each end to steady and guide it, and maneuvering it through and out the freight car door. On occasions, depending upon the size of the crate and its location in the car, it was necessary to move the crate in the car, unhook, manually hold it upright, relocate the lift, rehook, and then maneuver it through the car door.

There is a conflict in the testimony as to how the accident happened. Defendant's witnesses testified that a crate had been moved from the rear of the car, unhooked, and plaintiff and defendant's employee were holding it upright while the lift was being relocated; that plaintiff, contrary to cautionary directions, was holding the crate in the center instead of at the end; and that the crate tipped and fell upon plaintiff. Plaintiff's version was that the crate was hooked up and the operator of the lift, as he raised the crate from the floor, 'jiggled' it to level and balance it, causing the open hook to disengage and the crate to tip and fall.

Plaintiff's theory was that the lift operator was negligent in attempting to unload the crate without a full crew, or that the operator was negligent in 'jiggling' the load while lifting it with an open hook.

Defendant first challenges the sufficiency of the evidence to support a finding of negligence.

We have oft repeated the rule that a challenge to the sufficiency of the evidence, or a motion for nonsuit, dismissal, directed verdict, new trial, or judgment notwithstanding the verdict, admits the truth of the opponent's evidence and all inferences which can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party and in a light most favorable to the opponent. No element of discretion is involved. Such motions can be granted only when the court can say, as a matter of law, there is no substantial evidence to support the opponent's claim. Frasch v. Leedom, 162 Wash.Dec. 403, 383 P.2d 307; Miller v. Payless Drug Stores of Washington, Inc., 161 Wash.Dec. 649, 379 P.2d 932; Lambert v. Smith, 54 Wash.2d 348, 340 P.2d 774; Williams v. Hofer, 30 Wash.2d 253, 191 P.2d 306.

Interpreted in the favorable light required, plaintiff's evidence fairly imports, and would support findings that the lift operator directed the unloading operations; that, except at the time of the accident, three men worked in the car maneuvering the crates, one at each end and one hooking the clain to the lift; that the lift hook was an open one; that due to the absence of the third man plaintiff was required to both steady the crate and hook the chain; and that, in undertaking to mechanically level and balance the load, the lift operator negligently lowered the hook causing it to disengage and permit the crate to fall.

Defendant's evidence, in contrast, was uncertain as to the number of men on the job and as to the hook mechanism of the fork lift, and in conflict with plaintiff's evidence as to why the crate fell.

The trial court did not err in denying defendant's motions.

Defendant assigns error to the refusal of the trial court to submit an instruction on unavoidable accident. In Cooper v. Pay-N-Save Drugs, Inc., 59 Wash.2d 829, 835, 371 P.2d 43, 47, after an extensive review of previous decisions relating to unavoidable accident instructions, we stated:

'Running as a thread through most of our former decisions that we have reviewed, is the thought, stated affirmatively, that it is proper to give the instruction if there is affirmative evidence that an unavoidable accident occurred; stated negatively, it is error to give the instruction if there is no evidence of an unavoidable accident or if the only issue possible under the facts is that of negligence and contributory negligence. * * *'

Our review of the record in the case at bar reveals no affirmative evidence indicating that, but for the intervention of human error, the crate would have otherwise fallen. The issues of negligence and contributory negligence were submitted to the jury. The trial court did not err in refusing to submit an unavoidable accident instruction.

Defendant next contends the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict, because, defendant asserts, the evidence conclusively and without dispute establishes that, as a matter of law, the lift operator became the loaned servant of B & B. Thus, defendant argues, plaintiff's third party negligence action under RCW 51.24.010 fails, and defendant is immune from suit, or, in any event, is exonerated of vicarious liability. Plaintiff, just as vehemently, argues that the evidence established, as a matter of law, that the lift operator was a all times the employee of defendant.

In approaching this assignment of error, and the arguments revolving about it, it is important to bear in mind that the fact B & B and defendant were both engaged in extrahazardous callings (a fact stipulated to by the parties) is of no significant consequence, for RCW 51.24.010 provides immunity to the employer only. RCW 51.24.010 is not a bar to an action against a negligent third party, whether such party be engaged in extrahazardous employment or not. Greenleaf v. Puget Sound Bridge & Dredging Co., 58 Wash.2d 647, 364 P.2d 796; Fisher v. Seattle, 162 Wash.Dec. 787, 384 P.2d 852.

It is essential, then, to place the parties to the instant case in proper perspective. It is undisputed that plaintiff, at the time of the injury, was an employee of B & B. It is not cntended that plaintiff was a loaned servant of defendant. Defendant admittedly was the general (as distinguished from the special) employer of the lift operator and the owner of the lift equipment. Plaintiff--not the lift operator--is seeking redress against defendant as a third party tort-feasor. Defendant, as a third party tort-feasor, is not afforded immunity under the Workmen's Compensation Act. The burden of establishing the essentials of defendant's vicarious liability is upon plaintiff. The burden of avoiding liability upon the basis of the loaned servant doctrine is upon defendant. Clarke v. Bohemian Breweries, Inc., 7 Wash.2d 487, 110 P.2d 197.

The question presented by this assignment, then, turns upon the applicability of the loaned servant doctrine rather than upon the interpretation of and the immunity provided by RCW 51.24.010. The issue is vicarious liability, not statutory immunity.

The spotlight thus focuses primarily upon the two employers--the business in which each are respectively engaged, the work being performed at the time of the accident and its relationship to the business of the respective employers, the terms and nature of their agreement, the necessity for special equipment, the ownership, operation, and protection of such equipment, the need for and employment of the operator, the right of control over the equipment and operator, and such other surrounding factors as throw light upon the employment relationship. Generally speaking, a factual issue is presented. 1 Restatement, Agency (2d) § 227, p. 500.

We have in a number of cases ² considered the loaned servant doctrine with varying results, dependent upon the factual pattern. In Macale v. Lynch, 110 Wash. 444, 448, 188 P. 517, we state the general rule which we have applied:

'* * * It is, of curse, well-set-led law that one who is in the general employ and pay of one person may be loaned or hired, by his employer to another, and, when he undertakes to do the work of the other he becomes the servant of such other, to perform the particular transaction.

Standard Oil Co. v. Anderson, 212 U.S. 215, 29 Sup.Ct. 252, 53 L.Ed. 480; Olsen v. Veness, 105 Wash. 599, 178 Pac. 822. The controlling facts in these cases, and in all others which support the rule, is that the servant must have been in...