Leggette v. J. D. McCotter, Inc., 191

• Decision Date: 24 November 1965
• Docket Number: No. 191,191
• Citation: 265 N.C. 617,144 S.E.2d 849
• Court: North Carolina Supreme Court
• Parties: Norah Adell LEGGETTE, Widow, and Norah Adell Leggette, Next Friend of Mavis Leggette Carliles, Brenda Darnelle Leggette, Judy Caroline Leggette, Dorothy Lou Ann Leggette, Minor Children of Clayton Lee Leggette, Deceased, Employee, v. J. D. McCOTTER, INC., Employer, and Casualty Reciprocal Exchange, Carrier, and Crowder Construction Company, Employer, and Aetna Casualty & Surety Company, Carrier.

Page 849

144 S.E.2d 849

265 N.C. 617

Norah Adell LEGGETTE, Widow, and Norah Adell Leggette, Next

Friend of Mavis Leggette Carliles, Brenda Darnelle Leggette, Judy Caroline Leggette, Dorothy Lou Ann Leggette, Minor Children of Clayton Lee Leggette, Deceased, Employee, v. J. D. McCOTTER, INC., Employer, and Casualty Reciprocal

Exchange, Carrier, and Crowder Construction

Company, Employer, and Aetna Casualty &

Surety Company, Carrier.

No. 191.

Supreme Court of North Carolina.

Nov. 24, 1965.

Carter & Ross, Washington, for plaintiff appellees.

Young, Moore & Henderson, by B. T. Henderson, II, and J. Allen Adams, Raleigh, for defendant appellants.

Barden, Stith, McCotter & Sugg, by D. C. McCotter, Jr., New Bern, for defendant appellees.

DENNY, Chief Justice.

The determinative question on this appeal, based on the facts revealed by the record, is simply this: Is Crowder or McCotter, or both of them, together with their carriers, liable to the plaintiffs as the result of the death of Leggette?

In Weaver v. Bennett, 259 N.C. 16, 129 S.E.2d 610, a statement from Nepstad v. Lambert, 235 Minn. 1, 50 N.W.2d 614, is quoted as follows:

"Though well established, the loaned-servant principle has proved troublesome in its application to individual fact situations. The criteria for determining when a worker becomes a loaned servant are not precise; as a result, the state of the law on this subject is chaotic. Respectable authority for almost any position can be found, for even within a single jurisdiction the decisions are in conflict."

In the instant case, both the general employer and the special employer were subject to the provisions of our Workmen's Compensation Act at the time of the injury and death of Leggette. This factual situation did not exist in Shapiro v. City of Winston-Salem, 212 N.C. 751, 194 S.E. 479, or in Weaver v. Bennett, supra. Therefore, the identical question presented here was not before the Court for determination in either of those cases.

In 99 C.J.S. Workmen's Compensation § 47, page 242, et seq., it is said:

'* * * (A)n employee may simultaneously be in the general employment of one employer and in the special or temporary employment, for a particular purpose or occasion, of another, with all the legal consequences of the relation with the latter.

'Where such dual relationship exists, an employee injured in the special employment of one employer and in the thorities, be granted compensation as against either employer or against both, at least where at the time of the injury both the general and the special employers exert over the employee some measure of control, not necessarily complete, and there is a common or joint participation in the work and benefit to each from its rendition.'

Likewise, in Workmen's Compensation Law by Larson, Vol. I, § 48.23, at page 716, we find the following statement:

'The closest cases are those in which the 'business' of the general employer consists largely of the very process of furnishing equipment and employees to others. When, for example, a truck owner furnishes trucks and drivers at a profit to himself for the regular use of the special employer, it might at first seem that the bulk of the work being done is that of the special employer, and special employers have been held liable, in these circumstances. But it is also possible to say that the owner is advancing his own business, which is simply the business of furnishing such equipment and labor for profit, and, particularly when the facts show ultimate retention of control for the protection of expensive equipment, it is quite common to find the general employer remaining liable. * * *'

Also from the last cited authority, § 48.30, 30, at page 719, it is said:

'The factor that seems to play the largest part in lent-employee cases is that of furnishing heavy equipment. Many cases have found continuing liability in the general employer when he furnishes operators together with road equipment, excavating equipment, steam and truck shovels, trucks, air drills, air riveters and barges. Although there are contra cases, the majority of the decisions have been influenced by the arguments both that the general employer would naturally reserve the control necessary to ensure that his equipment is properly used, and that a substantial part of any such operator's duties would consist of the continuing duty of maintenance of the equipment.'

In § 48.40, pages 719 and 720 of Larson's Workmen's Compensation Law, we find the following:

'Joint employment occurs when a single employee, under contracts with two employers, simultaneously performs the work of both under the control of both. In such a case, both employers are liable for workmen's compensation. * * *

'There has always been a noticeable reluctance on the part of Anglo-American courts to emulate the wisdom of Solomon and decree that the baby be divided in half. Courts are showing an increasing tendency, however, to dispose of close lent-employee cases by adopting this sensible compromise, rather than by insisting on an all-or-nothing choice between two employers both bearing a close relation to the employee. * * *'

We think the work being done at the time of Leggette's death was beneficial to McCotter and Crowder. It was a practice of McCotter to rent pieces of heavy equipment to its customers, and Crowder was a customer of McCotter. McCotter was receiving $10.00 per hour for the use of the front-end loader and the operator of this heavy piece of equipment rented to Crowder. It made no difference to McCotter whether Leggette was loading trucks, excavating, or pouring cement, he got the same amount as rental for the equipment and the operator. Crowder's superintendent testified with respect to the use Crowder made of the machine. 'It does anything you need if you pay ten bucks an hour. Mostly Mr. Leggette moved earth. If I told him to move something else he did if he could. He loaded trucks, pulled them out of the ditch, even poured concrete with the bucket. I told him to pour concrete. * * * I directed him what to do.'

The evidence is also to the effect that at the time Kennedy was supervising the attempt to place the steel beam with six laborers, Leggette was operating the frontend loader in that very area, pulling the subgrade down in order to pour the floor in the cafeteria area. Leggette stopped the machine and 'came over there where the beams were because we were straining out there in the mud and he came over and said he would help us, and I (Kennedy) accepted the help.'

The evidence on this record supports the conclusion that Leggette had complete charge of the front-end loader. He was responsible for its repair and maintenance as well as for its operation. Crowder could have stopped Leggette if his work had been unsatisfactory, but Crowder did not have the authority to discharge him and assign one of Crowder's own employees to operate the front-end loader. However, Crowder's evidence does support the view that Leggette was completely under the direction of Kennedy with respect to the type of work to be done with the front-end loader. In fact, Kennedy, Crowder's superintendent, testified with respect to lifting the steel beam by use of the front-end loader, 'If I had told him not to do it he wouldn't have done it.'

We think the facts here support the view that plaintiffs had the right to proceed against either Crowder or McCotter, or both.

In Famous Players Lasky Corp. v. Industrial Accident Com'n., 194 Cal. 134, 228 P. 5, 34 A.L.R. 765, an aircraft corporation rented an airplane and pilot to the picture corporation by the day. The picture corporation was to give the pilot ordered as to the flights to be made in connection with the filming of a picture. After a trial run, the picture corporation told the pilot he would have to fly lower. While flying at 75 feet he struck an air pocket and crashed. Both employers were held liable for workmen's...