Marion Steam Shovel Co. v. Bertino

• Decision Date: 12 March 1936
• Docket Number: No. 10331.,10331.
• Citation: 82 F.2d 541
• Parties: MARION STEAM SHOVEL CO. v. BERTINO et al.
• Court: U.S. Court of Appeals — Eighth Circuit

82 F.2d 541 (1936)

MARION STEAM SHOVEL CO. v. BERTINO et al.^*

No. 10331.

Circuit Court of Appeals, Eighth Circuit.

March 12, 1936.

Elliott H. Jones, of Kansas City, Mo. (J. M. Strelitz, of Marion, Ohio, and William C. Scarritt, Edward S. North, and Arthur D. Scarritt, all of Kansas City, Mo., on the brief), for appellant.

Clay C. Rogers, of Kansas City, Mo. (O. C. Mosman, C. Jasper Bell, and Paul A. Buzard, all of Kansas City, Mo., Louis N. Wolf, of Joplin, Mo., Cornelius Murphy, Jr., of Kansas City, Mo., and Sylvan

Bruner, of Pittsburg, Kan., on the brief), for appellees.

Before GARDNER, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an action brought by appellees, as plaintiffs, to recover damages for personal injuries suffered by William Bertino. The parties will be referred to as they appeared below.

On the first trial of the action, the lower court, at the close of plaintiffs' testimony, directed a dismissal on the merits, and from the judgment entered plaintiffs appealed. We reversed the judgment and remanded the cause for a new trial. Bertino v. Marion Steam Shovel Co. (C.C.A. 8) 64 F.(2d) 409, 413. On retrial, plaintiff Bertino recovered judgment for $14,000, from which defendant has appealed, and seeks to reverse the judgment on the following grounds: (1) The law declared on the former appeal is not binding on this court; (2) Titus was not defendant's servant; (3) if Titus was defendant's servant, so was plaintiff Bertino; (4) there was no proof that Cleon Williams, whose negligence was charged and submitted to the jury, was the servant of defendant; (5) the plaintiffs Mastin & Co. had no right to maintain this action; (6) the court erred in refusing instructions requested by defendant and in giving certain instructions on its own motion.

Plaintiff Bertino was in the general employ of the Alston Coal Company, which was engaged in operating a strip pit coal mine. It entered into a written contract with the defendant, Marion Steam Shovel Company, to purchase a large electric shovel. Pursuant to this contract, the shovel was being erected under the direction and supervision of Ed Titus, who was a regular employee of defendant. In addition to Titus, two electricians, employees of defendant, were employed on the work at the time of the accident. We shall again refer to the terms of the contract, but it is sufficient now to observe that the labor, except the supervision of the erection of the shovel and installation of the electrical equipment and the actual operation of the equipment, was being performed by the Alston Coal Company, through its regular employees, of whom plaintiff Bertino was one, under the supervision of Titus. The appeal does not challenge the sufficiency of the evidence as to the negligence of Titus nor that plaintiff Bertino's injuries proximately resulted therefrom. The recital of the facts of the accident need not therefore go into detail.

Titus, at the time of the accident, was attempting, with the aid of men under his supervision, to connect the dipper of the shovel to a mechanical device known as the dipper stick, in which process a chain was attached to the hoist. This chain belonged to defendant, was seven-eighths inches thick, and of one strand. The movement necessitated that this chain carry the weight of the dipper, and it was necessary to turn the dipper after it had been raised, and for that purpose Titus directed Bertino and the other men working under him to take hold of the dipper so as to swing it around after it had been raised. Titus then unlatched the door of the dipper, permitting the end of the door to fall to the ground. This prevented the men from swinging the dipper, and Titus ordered the engineer to hoist the dipper farther from the ground, and directed the men to take hold of it so as to line it up with the stick when it was raised high enough to be clear of the ground. Bertino, in response to Titus' orders, took hold of the dipper and was pushing on it when Titus gave the electrician another signal to raise it, and the electrician "jerked" the load, causing Bertino's hand to slip in between the dipper and the door, at which time the chain broke causing the dipper to drop, and Bertino's hand was caught between the dipper and the dipper door. When Bertino observed that the chain was to be used to hoist the heavy dipper, he protested to Titus that it was not of sufficient strength. Bertino also suggested removing the door from the dipper, which weighed about two tons, thus relieving the weight and tension on the chain, but Titus insisted that it was safe. It is the contention of plaintiffs that the use of this chain instead of a cable for the purpose of raising the dipper was negligence, and that it was negligence to attempt to raise the dipper with the door open, that the door should not have been attached until after the dipper was fastened to the dipper stick, and that defendant was negligent in suddenly jerking the dipper while Bertino was pushing on it, and also that defendant was negligent in failing to warn Bertino of the danger of the chain breaking.

On the former appeal we stated in an opinion by Judge Booth that the crucial question to be decided was whether, in view of the provisions of the contract between the coal company and defendant, it could be said, so far as plaintiff Bertino is concerned, that it conclusively appears that Titus was at the time of the accident an employee of the coal company. In deciding this question, two tests were propounded: "(1) Whose work was being done by Titus; (2) under whose control was Titus at the time." In construing the contract as between the coal company and the shovel company we said:

"From the provisions of the contract between the two companies, it clearly may be argued that the shovel company was carrying out one of its own obligations in furnishing Titus to superintend the erection and starting of the shovel; and that by performing this obligation upon request, the shovel company was making definite and certain the terms of its guarantee of the machine; in other words, that the work being done was that of the shovel company."

We held that it was a question of fact as to whether Titus was an employee of the shovel company at the time Bertino was injured, even though as between the parties to the contract Titus must be regarded as an employee of the coal company. This holding has become the law of the case. Northern Pac. Ry. Co. v. Van Dusen Harrington Co. (C.C.A.8) 60 F.(2d) 394; Standard Accident Ins. Co. v. Rossi (C.C. A.8) 52 F.(2d) 547; Thompson v. Maxwell Land-Grant & Ry. Co., 168 U.S. 451, 18 S.Ct. 121, 42 L.Ed. 539. But it is strenuously urged that, as this rule is one of mere practice, we should again review the record and recede from our decision on the former appeal. While we are not bound to adhere to our previous decision as being the law of the case American Surety Co. v. Bankers' Savings & Loan Ass'n (C.C. A.8) 67 F.(2d) 803, 807, yet, ordinarily, all questions determined on appeal should not be reopened upon a second appeal in the same cause. As said by Judge Van Valkenburgh in American Surety Co. v. Bankers' Savings & Loan Ass'n, supra: "The rule `law of the case,' where applicable, is a salutary one as contributing to repose in litigation, by foreclosing reargument of issues once duly presented and finally decided. It should be departed from only after careful consideration, and upon situations arising in specific cases."

We think the evidence as to the status of Titus is not substantially different from that presented on the former appeal. If there is any material difference in the evidence in that regard, it tends rather to strengthen the contention of plaintiffs on this issue than that of defendant.

The contract for the sale of the shovel was apparently prepared on a regular printed form of defendant. It contains provision that the seller should at any time within 30 days after arrival of the machine and equipment, upon buyer's written request, "transfer within a reasonable time to buyer for a period of * * * consecutive days, the services of one skilled man to supervise, as employe of the buyer, the erecting and starting of said machine; failure to request the services of said skilled man shall constitute an acceptance by buyer of said machine and equipment, and a waiver of any warranty, express or implied, with reference thereto. * * * In addition to the erector furnished by the seller to supervise the erecting and starting of shovel seller agrees to furnish an electrician to supervise the installation of the electrical equipment, without charge to buyer." The contract also contains provision that "the above specified property shall be and remain the property and subject to the order of seller until paid for in full." The equipment had not been paid for at the time of the accident. The contract further provides that: "Seller agrees to furnish without charge to the buyer the usual set of erection tools, etc."

Titus was a regular employee of defendant, sent out by it to supervise the erection of the equipment in accordance with the terms of the contract. Two electricians, also employees of defendant, were likewise employed on the work at the time of the accident. The erection of the shovel occupied about three months. Titus and the electricians were all paid by defendant, and not by the coal company, and were subject to discharge by defendant, and not by the coal company. Plaintiff Bertino was a regular employee of the coal company, paid by that company, and subject to discharge by that company.

During the process of erecting the shovel, the superintendent of the coal company, believing that Titus was not properly doing his work, complained to his superiors, whereupon the president of the coal company wrote a letter to defendant, in which he said: "Your erector is getting along so slowly with the erection of this shovel, I think you...