Doty v. Lacey

• Decision Date: 07 November 1952
• Citation: 249 P.2d 550,114 Cal.App.2d 73
• Court: California Court of Appeals Court of Appeals
• Parties: DOTY v. LACEY et al. Civ. 19022.

Page 550

249 P.2d 550

114 Cal.App.2d 73

DOTY v. LACEY et al.

Civ. 19022.

District Court of Appeal, Second District, Division 3, California.

Nov. 7, 1952.

Burum, Young & Wooldridge, Bakersfield, for appellant.

Moss, Lyon & Dunn, Sidney A. Moss and Henry F. Walker, Los Angeles, for respondent Wonderly Const. Co. Crider, Runkle & Tilson and Elber H. Tilson, Los Angeles, for respondent John A. Lacey.

VALLEE, Justice.

Appeal by plaintiff from a judgment for defendants entered on a directed verdict in an action for damages for personal injuries.

Viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to plaintiff, the facts are these.

Brown Drilling Company was the owner of oil field equipment which it wanted moved from Los Angeles County to Sacramento County. Plaintiff was an employee of Brown. Brown made an oral agreement with defendant Lacey by which Lacey agreed to furnish trucks and drivers, furnish a crane with an operator and an oiler (driver of the truck on which the crane was mounted) to load the equipment, and to truck it to its destination.

On the day moving was to begin, the trucks arrived at the location of the equipment under the supervision of Kennedy, truck foreman for Lacey. On the way to the location, the crane broke down. When it failed to arrive, Green, Brown's supervisor, called Hall, Lacey's superintendent, by telephone. Hall told Green the crane had broken down, and suggested he get a crane from defendant Wonderly Construction Company. Green said: '[A]ll right, to go ahead.' Hall called Wonderly, asked if they had a crane available; they said they had, and Hall asked that it be sent to the location of the equipment with an operator and an oiler. The crane arrived with Winkler, operator of the crane, and an oiler, both employees of Wonderly. It was a mobile crane, mounted on a truck. The crane itself consisted of a cab with a boom running out from the base of the cab, the boom being four braced angle irons forming a box with lines running from the cab over the end of the boom and down to the objects to be moved. The crane was equipped with two sets of lines, one known as a 'fast' line, which was used for lifting light loads, and the other a heavy line used for lifting heavier loads.

Brown had three crews of five men on the scene, each under the direction of its foreman, Tate. Plaintiff was a member of one of the crews. After several pieces of equipment were loaded, operations were begun to load a large piece of machinery, weighing about 18 tons, called a drawworks, onto a truck. The drawworks was in the middle of two subbases which formed the base of an oil derrick when the derrick was raised, thus making a floor out around the drawworks. The 'fast' line was not in use. It was mounted on the boom, drawn up nearly to the end of the boom so that only a foot to one and a half feet of the line together with a hook thereon which weighed about 60 pounds extended from the end of the boom. The 'fast' line was held in place by a brake. The operator of the crane had control of it and released it by pressure from his foot on the brake. The crane was backed into position near the drawworks. The boom was then lowered to a point about the center of the drawworks and lines were dropped to be hooked onto it.

The Brown crews, including plaintiff, were on the floor. They hooked the line to the drawworks, after which one of the men on the floor signaled Winkler to lift the load. As the load was brought to bear on the cable, the front wheels of the crane truck came off the ground two or three feet letting the load down. As the wheels settled back, the drawworks raised about a foot and a half above the floor. Winkler continued to raise the boom, 'the load overbalanced,' and the drawworks swung over against the boom denting it about 6 inches. Several of the Brown men, including plaintiff, had remained on the floor to work after the drawworks had been removed.

Shortly after the boom was damaged, Winkler motioned to Kennedy. Kennedy walked to within 3 feet of Winkler who asked him to have Tate get his men off the floor. Kennedy, on the floor, hollered to Tate who was some 75 feet away. There was evidence that there was much noise at the time. It was very difficult to hear; there was so much noise hand signals were usually used in the operation. Without waiting for Tate to reach the floor, and without waiting for all the men to get off the floor, Kennedy told Winkler 'to go ahead or that it was all clear, or words to that effect.'

Winkler then moved the drawworks off the floor by having the oiler move the truck. He then started to lower the load to the ground, and while doing so the boom broke and collapsed, causing the drawworks to fall to the ground. When the boom collapsed, the 'fast' line with the sinker and the hook attached to it, which had been hanging loose from the tip of the boom, swung out, whipped across the floor, struck plaintiff, knocking him to the floor and causing severe injuries.

The action is against Lacey and Wonderly. The motion of Wonderly for a directed verdict was granted on the ground Winkler was a fellow employee of plaintiff,--that is, Winkler and plaintiff were both employees of Brown; that plaintiff's injuries were caused by the negligence of his fellow employee; and that, therefore, the Industrial Accident Commission had sole jurisdiction. The motion of Lacey for a directed verdict was granted on the ground there was no proof of negligence on his part.

The Case Against Wonderly

Plaintiff-appellant urges that there was sufficient evidence to support a finding by the jury that Winkler was the employee of Wonderly, an independent contractor, and not a special employee of Brown, as the trial judge concluded in granting the motion of Wonderly. Wonderly counters that it was not an independent contractor; that Winkler was Brown's employee, and that it is not liable under the doctrine of respondeat superior. The parties appear to agree there was sufficient evidence that Winkler was negligent to require submission of that question to the jury.

Labor Code, § 3353, defines an independent contractor as: '* * * any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.' We think there can be no question but that Wonderly was an independent contractor. California Employment Commission v. Los Angeles etc. News Corp., 24 Cal.2d 421, 424, 150 P.2d 186; Anderson v. Badger, 84 Cal.App.2d 736, 741, 191 P.2d 768; Perguica v. Industrial Accident Comm., 29 Cal.2d 857, 859, 179 P.2d 812. The real question is whether there was evidence from which the jury could have concluded that Winkler remained an employee of Wonderly.

When an employer lends the services of an employee to a hirer for the operation of an instrumentality owned by the employer, together with the use of the instrumentality, without relinquishing to the hirer the power to discharge the employee, to go where and perform such work as the hirer directs, the legal inference is that, although the hirer directs the employee where to go and what to do in the performance of the work, the employee as the operator of the instrumentality employed in doing the work, remains, in the absence of an agreement to the contrary, the employee of the employer alone insofar as the manner and method of operating the instrumentality is concerned, and the negligence of the employee is held to be that of the owner, and not that of the hirer of the instrumentality. Billig v. Southern Pacific Co., 189 Cal. 477, 485, 209 P. 241; Peters v. United Studios, Inc., 98 Cal.App. 373, 378-9, 277 P. 156; Scrimsher v. Reliance Rock Co., 116 Cal.App. 500, 504-5, 2 P.2d 862; Lowell v. Harris, 24 Cal.App.2d 70, 76, 74 P.2d 551, Anno. 17 A.L.R.2d 1388. 'In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.' 1 Rest. Agency, 501, § 227.

A general employer may lend his employee together with an instrumentality in such a manner as to render the person to whom the employee is loaned the special employer for the time being and hence relieve the general employer from liability for the employee's negligence in the operation of the instrumentality. But to escape liability, the general employer must relinquish full control of the employee for the time being, it not being sufficient that the employee is partially under the control of the third person; and it is necessary to distinguish between authoritative direction and control and mere suggestion as to details or the necessary cooperation where the work furnished is part of a larger operation. Peters v. United Studios, Inc., 98 Cal.App. 373, 379, 277 P. 156; Lowell v. Harris, 24 Cal.App.2d 70, 76, 74 P.2d 551. 'A continuation of the general employment is indicated by the facts that the general employer may at any time substitute another servant, that the time of employment is short, and that the...