Ismil v. L. H. Sowles Co., 43302

• Decision Date: 22 December 1972
• Docket Number: No. 43302,43302
• Parties: Raymond ISMIL et al., Respondents, v. L. H. SOWLES COMPANY, Appellant, William Grobe, Respondent, Kenneth Hauschild, Respondent.
• Court: Minnesota Supreme Court

Page 354

203 N.W.2d 354

295 Minn. 120

Raymond ISMIL et al., Respondents, v. L. H. SOWLES COMPANY, Appellant, William Grobe, Respondent, Kenneth Hauschild, Respondent.

No. 43302.

Supreme Court of Minnesota.

Dec. 22, 1972.

Syllabus by the Court

1. Where an employee is a loaned servant, the vicarious liability for his negligent acts within the scope of employment shifts from the general employer to the borrowing employer. Here, the applicability of the loaned-servant doctrine is moot because, under the special verdict, the general employer is independently liable for its negligence in furnishing an incompetent employee.

2. Under the evidence there was no error by the trial court in directing the jury to find plaintiff not negligent.

3. Granting a new trial for misconduct of counsel is a matter largely within the discretion of the trial court. Under all of the circumstances, the trial court did not abuse its discretion.

Meagher, Geer, Markham & Anderson and O. C. Adamson, II, Gaughen & Reid, Minneapolis, for appellant.

Schermer, Schwappach, Borkon & Ramstead, Minneapolis, for Ismil, and others.

Philip Gartner, Lake City, for William Grobe.

Mendow, Greenberg & Greenberg, Minneapolis, for Kenneth Hauschild.

Heard before KNUTSON, C.J., and TODD, MacLAUGHLIN, and SCHULTZ, JJ.

MacLAUGHLIN, Justice.

This is an action to recover damages sustained by plaintiffs ¹ as a result of an industrial accident on February 25, 1970, in the construction of a Control Data Corporation building in Bloomington, Minnesota. Pursuant to the jury's special verdict, judgment was entered for plaintiffs against defendants L. H. Sowles Company and William Grobe. Defendant Sowles Company appeals from an order denying its motion for a new trial and from the judgment. We affirm.

The accident occurred while concrete was being poured for the fourth-floor walls of a concrete wind tower. Kraus-Anderson Company, the general contractor, was responsible for the erection of the towers. Plaintiff Raymond Ismil was employed by Kraus-Anderson and was foreman of the crew of concrete workers building the towers. Defendant Sowles Company was a subcontractor which, among other things, was to supply and erect the steel reinforcing rods around which the concrete was poured. In order to raise the steel into place, Sowles had a large truck crane on the premises. Although its subcontract did not pertain to the pouring of concrete for the tower, Sowles agreed orally to lease its crane, together with an operator and an oiler, to Kraus-Anderson on an hourly rental basis for the purpose of lifting buckets of concrete to the upper-floor levels of the tower. One Larry Schoening was the very experienced operator and defendant William Grobe was the oiler, both when the crane was used for Sowles' purposes and when used for Kraus-Anderson's purposes under the oral agreement. Both men were employees of Sowles. The oiler's job was to service and maintain the crane. He had only minimal experience lifting steel with the crane and, prior to the day of the accident, only 10 minutes' experience lifting buckets of concrete with the crane. There is considerable evidence of his ineptitude in operating the crane. Despite this, he had been authorized to operate the crane by his employer, Sowles.

On the day of the accident, Kraus-Anderson desired to add another story to the wind tower. Sowles was informed of the need for the crane to lift buckets of concrete to the top of the tower, and the crane was positioned by the tower. Raising the bucket to an area generally above the tower was relatively simple, but positioning and lowering the bucket to the precise pouring point required a signalman to direct the operator. The operator of the crane could see the bucket while it was being raised, but when the bucket was over the tower, the tower completely obstructed his vision. He was dependent upon the signalman to indicate where the bucket should be positioned above the tower and when, and how far, the boom and bucket should be lowered down among the workmen on the top of the tower to the pouring point. Plaintiff, as foreman of the concrete crew on top of the tower, ordered defendant Kenneth Hauschild, also a Kraus-Anderson employee, to act as the signalman. Operated by Schoening, the crane smoothly lifted buckets of concrete to the top of the tower, where Kraus-Anderson employees emptied the bucket into forms which defined the rising walls of the tower. Then Schoening left the crane for his coffee break and instructed the oiler, defendant Grobe, to operate the crane. Grobe lifted a bucket of concrete over the top of the tower. There is some dispute about the signals given to the oiler by Hauschild, but the jury found the signalman to be free of negligence. The bucket began to drop slowly and then dropped abruptly on plaintiff. Plaintiff was permanently and seriously injured.

Plaintiffs brought this action against Sowles Company, the signalman, Hauschild, and the oiler, Grobe. In the special verdict, the jury found Sowles Company negligent in furnishing Grobe as operator of the crane and that such negligence was a direct cause of the injuries; they found Grobe and Sowles Company were negligent in the operation of the crane and that such negligence was a direct cause of the accident; and they found Hauschild was not negligent. Only defendant Sowles has appealed.

1. Sowles contends that Grobe, the oiler, was a loaned servant of Kraus-Anderson as a matter of law under the facts of this case or, at the very least, that the question should have been submitted to the jury. The trial court ruled as a matter of law that the loaned-servant doctrine was inapplicable and instructed the jury accordingly.

Once it is determined that a workman is a servant (employee), it is well established that the master (employer) is subject to vicarious liability for the tortious conduct of the servant which is within the course and scope of his employment. However, if the employee is a loaned servant, the liability for his negligent acts shifts from the general employer to the borrowing employer.

Nepstad v. Lambert, 235 Minn. 1, 50 N.W.2d 614 (1951), is the leading Minnesota case on the loaned-servant doctrine. In that case two standards are established in determining when a workman has become a loaned servant. The first is the 'whose business' test, in which it is asked: 'At the time of the negligent act, which employer's business was being done or furthered?' 235 Minn. 11, 50 N.W.2d 620. The second is the 'right of control or direction' test in which it is asked: '(W)hich employer had the right to control the particular act giving rise to the injury?' 235 Minn. 14, 50 N.W.2d 621. The question is not whether the worker remains the employee of the general employer as to general matters, but whether, as to the act in question, he is acting in the business of and under the direction of the borrowing employer. Nepstad also held that the directions of the borrowing employer must be commands and not requests if the employee is to be converted into a loaned servant, and that the borrowing employer must have authority to exercise detailed authoritative control over the manner in which the employee is performing the work.

The trial court, in rejecting the loaned-servant doctrine, placed considerable reliance on the fact that Grobe, in operating the crane, was under the absolute direction of Kraus-Anderson's signalman only during the final stages of the movement of the crane. The trial court understood Nepstad to require that every movement of the crane from the time it left the ground must be directed by the borrowing employer (Kraus-Anderson). We do not interpret Nepstad so narrowly. The tests of the Nepstad case were sufficiently satisfied by the evidence to compel a jury determination of whether Grobe was a loaned servant. The accident occurred in the course of pouring concrete, and that function was clearly the responsibility of Kraus-Anderson. The jury could reasonably have found that the business of Kraus-Anderson and not Sowles was being furthered at the time of the negligent crane operation. Similarly, the jury could find that the acts which led to the injuries were directed and controlled by the signalman, an employee of the borrowing employer. We hold that the trial court erred in determining, as a matter of law, that the loaned-servant doctrine was inapplicable.

However, the error of the trial court became unprejudicial and harmless when the jury...