Huckstorf v. Vince L. Schneider Enterprises

• Decision Date: 20 December 1968
• Citation: 41 Wis.2d 45,163 N.W.2d 190
• Parties: Edward HUCKSTORF, Appellant, v. VINCE L. SCHNEIDER ENTERPRISES, Respondent.
• Court: Wisconsin Supreme Court

Page 190

163 N.W.2d 190

41 Wis.2d 45

Edward HUCKSTORF, Appellant, v. VINCE L. SCHNEIDER ENTERPRISES, Respondent.

Supreme Court of Wisconsin.

Dec. 20, 1968.

Rehearing Denied March 4, 1969.

Habush, Gillick, Habush & Davis, Milwaukee, for appellant.

Prosser, Zimmermann, Wiedabach, Koppa & Lane, Milwaukee, for respondent; Jack R. Wiedabach, Milwaukee, of counsel.

BEILFUSS, Justice.

The issues are: (1) Can the issue of a loaned employee be resolved by motion for summary judgment; and (2) Was the crane operator a loaned or special employee of the general contractor.

The rule so often repeated it needs no citation is that if it appears there are any disputed facts material to the controlling legal issue or any permissible conflicting inferences from the undisputed facts materials to the issue the matter should not be determined by summary judgment. In this case, if it is determined that Zaretzke was the loaned or special employee of Woerfel and conversely not the employee of Schneider at the time and place of the accident, then there was no liability on the part of Schneider for the injuries and damages of the plaintiff and the complaint should be dismissed.

From the affidavits in support of and in opposition to the motion for summary judgment and the pleadings, we are of the opinion that facts and permissible inferences material and necessary for resolution of the loaned employee issue are undisputed. This issue, therefore, can be resolved by motion for summary judgment as a matter of law.

This court, ¹ as well as others, has found the question of the 'loaned employee' troublesome. The definition and factual essentials necessary to establish the legal relationship of the loaned employee are not uniform in all the reported cases, nor is the same emphasis always to the necessary elements.

However, in Springfield Lumber, Feed & Fuel Co. v. Industrial Comm., supra, p. 409, 102 N.W.2d p. 757, this court set forth the standards we deem to be appropriate:

'The essential tests to be applied in determining whether a loaned employee retains his employment with his original employer, or becomes the employee of the special employer, are set forth in Seaman Body Corporation v. Industrial Comm., 1931, 204 Wis. 157, 163, 235 N.W. 433, 436, as follows:

"The vital questions in controversies of this kind are:

"(1) Did the employee actually or impliedly consent to work for a special employer?

"(2) Whose was the work he was performing at the time of injury?

"(3) Whose was the right to control the details of the work being performed?

"(4) For whose benefit primarily was the work being done?"

We start with the legal inference (perhaps more correctly labeled a presumption under our conception of presumptions and inferences) that the employee remains in the employ of the general employer.

In Braun v. Jewett (1957), 1 Wis.2d 531, 85 N.W.2d 364, and again in Skornia v. Highway Pavers, Inc. (1968), 39 Wis.2d 293, 159 N.W.2d 76, we adopted the rule as it appears in Restatement, 1 Agency 2d, sec. 227, p. 501:

Comment b provides: 'Inference that original service continues. 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.'

Comment c provides in part: 'Factors to be considered. * * * Thus a continuation of the general employment is indicated by the fact that the general employer can properly substitute another servant at any time, that the time of the new employment is short, and that the lent servant has the skill of a specialist.

'A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value. Normally, the general employer expects the employee to protect his interests in the use of the instrumentality, and these may be opposed to the interests of the temporary employer. * * *'

Although certainly not conceding that element of consent of the employee does not appear in the facts of this case, counsel for Schneider devoted a substantial part of his brief and his argument to the proposition that the element of consent of the employee to serve the special master or employer should not apply in a third-party action in a determination of responsibility for acts of a loaned employee under respondeat superior.

He distinguishes third-party actions under the doctrine of respondeat superior from employee-employer relationships under the statutory liability imposed in workmen's compensation claims. In support of this position he cites several cases. ²

In the very recent case of Skornia v. Highway Pavers, supra, decided in June, 1968, a like argument was made and rejected. In Skornia we stated:

'It is argued by appellant that these rules are applicable only to workmen's compensation cases and not to questions of liability to third persons. Most cases of 'loaned servants' have arisen out of an injury to the employee whose status is in question, and hence they usually involve the law of workmen's compensation. However, we see no reason why a different rule of agency should be applied when the injury is to a third person, for the same legal question arises--i.e., who is the responsible master or who is liable under the doctrine of respondeat superior. * * * In comment a, p. 501, to the general rule it is pointed out that:

"* * * he can become the servant of another only if there are the same elements in his relation to the other as would constitute him a servant of the other were he not originally the servant of the first.' p. 299, 159 N.W.2d p. 80.

We find no compelling reason to retreat from the position so recently taken.

We, however, agree with the respondent Schneider that under the undisputed facts there was implied consent on the part of Zaretzke to serve the Woerfel Company as a loaned employee at the time and place in question and that implied consent fulfills the consent...