Luther McGill, Inc. v. Clark

• Decision Date: 05 November 1962
• Docket Number: No. 42377,42377
• Citation: 244 Miss. 707,146 So.2d 338
• Parties: LUTHER McGILL, INCORPORATED v. Archie B. CLARK.
• Court: Mississippi Supreme Court

Page 338

146 So.2d 338

244 Miss. 707

LUTHER McGILL, INCORPORATED v. Archie B. CLARK.

No. 42377.

Supreme Court of Mississippi.

Nov. 5, 1962.

Beard, Pack, Ratcliff & Dillard, Laurel, for appellant.

Jones & Jones, Waynesboro, W. S. Murphy, Lucedale, for appellee.

KYLE, Justice.

This case is before us on appeal by Luther McGill, Incorporated, defendant in the court below, from a judgment of the Circuit Court of George County rendered in favor of the appellee Archie B. Clark, plaintiff in the court below, against the appellant for damages for personal injuries alleged to have been sustained by the appellee while assisting in the unloading of parts of an oil drilling rig. This is the second time that the case has been before us on appeal.

The plaintiff alleged in his declaration that on or about May 29, 1958, he was employed by C. A. Hurst Drilling Company on an oil drilling rig in George County; that the drilling company had to move its rig to another location and the defendant Luther McGill, Inc., was moving the rig for the drilling company; that when McGill's superintendent and crew took charge of the moving of the rig the plaintiff and other employees of Hurst were put under the orders of McGill and remained so until the rig had been completely moved and relocated by McGill. Plaintiff further alleged that on the date mentioned above one of the defendant's trucks moved to the drilling site a section of the substructure of the drilling rig, weighing approximately 14 1/2 tons, and another of the defendant's trucks known as the gin pole truck picked up the section of the substructure with a gin pole to set the structure in place; that when the substructure was lifted it was off balance and the plaintiff was ordered to sit on the upper end of the substructure to make it balance by his weight, and almost immediately after he sat down on the upper end of the substructure the chain, which was much too light for its load and known to be so by the superintendent of the defendant's crew, snapped in two and dropped the substructure on a boarded road. The plaintiff charged that he was dropped about 4 1/2 or 5 feet, as a result of which a piece of line pipe which was being hauled in the section of the substructure caught his right hand, crushing the end of his fingers and breaking his pelvic bone and his backbone in several places, seriously injuring his testicles, and knocking the plaintiff unconscious.

The plaintiff charged that the defendant was guilty of negligence: (1) In that it did not have on its truck the proper equipment with which to lift, haul and relocate the substructure; (2) in that the chain used as a bridle to balance the substructure was utterly unfit for that purpose; (3) in that the superintendent of the defendant's crew was grossly negligent in ordering the plaintiff to sit where he was ordered to sit; and (4) in that the defendant failed to furnish the plaintiff a safe place to work and safe equipment with which to work.

The plaintiff further alleged that, as a result of his injuries, he was totally disabled for work for approximately eight months, and that he was still unable at the time of the filing of his declaration to do his usual work in the oil and drilling business or to hold any job requiring real physical strength. The plaintiff charged that he was entitled to recover both actual and punitive damages.

The defendant in its answer denied that it was guilty of the several acts of negligence alleged in the plaintiff's declaration. As a second defense, the defendant denied that the defendant was in charge of operations at the drilling site, as alleged in the plaintiff's declaration. The defendant admitted that it was engaged in the trucking business and in moving oil field equipment, and that, at the time of the accident complained of its trucks and drivers were engaged in transporting an oil drilling rig substructure for Hurst from one drilling site to another. But the defendant averred that at the time of the accident the trucks and equipment owned by the defendant and used in moving the oil drilling rig for Hurst were leased or rented to Hurst, and that the employees of the defendant who were engaged in the moving of the rig were the loaned servants of Hurst, who had sole control of the operations at the drilling site, and the defendant, therefore, owed no duty to the plaintiff. The defendant also set up in its answer certain other special defenses, including in the alternative, as a fifth defense, the charge that the plaintiff at the time of his injury was the loaned servant of the defendant and therefore the relation of master and servant existed between the defendant and the plaintiff, and under the exclusive remedy provisions of the Mississippi Workmen's Compensation Law the defendant was immune to the suit at common law brought by the plaintiff.

The case was tried at the February 1960 term of the court, and at the conclusion of the evidence offered on behalf of the plaintiff, the court sustained the defendant's motion for a directed verdict on the ground that the plaintiff was precluded under the Mississippi Workmen's Compensation Law from maintaining a common law action against the defendant; and a judgment was entered in favor of the defendant. From that judgment the plaintiff prosecuted an appeal to this Court; and this Court, on March 13, 1961, reversed the judgment of the lower court and remanded the cause for a new trial. See Clark v. Luther McGill, Inc., (1961), 240 Miss. 509, 127 So.2d 858.

The case was tried again at the August 1961 term of the court, and the jury returned a verdict for the plaintiff for the sum of $25,000. The defendant's motion for a new trial was overruled, and a judgment was entered in favor of the plaintiff for the amount stated in the verdict of the jury. From that judgment the appellant has prosecuted this appeal.

The appellant has assigned and argued three points as grounds for reversal of the judgment of the lower court, to-wit: (1) That the verdict of the jury was so excessive as to evince bias, passion and prejudice on the part of the jury, and the court therefore, erred in failing to sustain the appellant's motion for a new trial; (2) that the court erred in refusing to grant the appellant's request for a peremptory instruction and direct a verdict for the defendant at the conclusion of all of the testimony; and (3) that the verdict of the jury and the judgment of the court were contrary to the overwhelming weight of the evidence, and the court erred in failing to grant the defendant a new trial for that reason.

It was the primary contention of the appellant on the first trial that the plaintiff Clark, at the time of his injury, was the loaned servant and employee of the defendant McGill; that the relation which existed between the defendant and the plaintiff was that of master ans servant; and that under the provisions of the Mississippi Workmen's Compensation Act the plaintiff's exclusive remedy was under the provisions of that Act. That contention was rejected by this Court on the first appeal, and in its opinion on that appeal the Court stated that the plaintiff's evidence on the first trial was sufficient to support a finding that the plaintiff was not an employee of McGill.

It was the primary contention of the appellant on the second trial that at the time of the accident which resulted in the plaintiff's injury the trucks and equipment of McGill were leased or rented to C. A. Hurst Drilling Company; that the employees of McGill who were engaged in moving the drilling rig to its new location were loaned servants of Hurst, who had sole control and direction of the operations at the drilling site, including the unloading and placing of the substructure at the new location; and for that reason McGill was not liable in a third party action for the injuries alleged to have been sustained by the appellee. The appellant's theory of the case on the second trial was presented to the jury in two instructions granted to the appellant in which the jury was told: (1) That if they believed from the evidence in the case that the employees of McGill, who were present and participating in the moving of the substructure at the time the plaintiff was injured, and the vehicles, machines and equipment of McGill which were being used in the moving of the substructure, were rented by the hour to C. A. Hurst Drilling Company by McGill and were under the exclusive control of Hurst, it was the sworn duty of the jury to find for the defendant; and (2) that if they believed from the evidence that it was Hurst which had the direction and control of the job of work being done at the time and place of the plaintiff's fall, it was their duty to find in favor of the defendant. The jury by their verdict rejected the appellant's contention that the employees of McGill were the loaned servants of Hurst, and that McGill had no control over the personnel and no responsibility under the law for any acts on the part of his employees while engaged in unloading and placing of the substructure at the new drilling site.

After a careful examination of the testimony offered on behalf of the respective parties, we think there was no error in the refusal of the trial judge to grant the appellant's request for a directed verdict at the conclusion of all of the testimony. We also think that it cannot be said that the verdict of the jury and the judgment of the court were contrary to the overwhelming weight of the evidence, or that the court erred in refusing to grant the defendant a new trial for that reason.

The rule is well established by the decisions of this Court that in determining the question whether or not the defendant is entitled to a directed verdict, the evidence must be treated as proving every fact favorable to the plaintiff's case which is established either directly or by reasonable inference. Dean v. Brannon, 139 Miss. 312, 104 So. 173, 175; ...