McDowell Const. Supply Corp. v. Williams, 7096
| Decision Date | 06 February 1974 |
| Docket Number | No. 7096,7096 |
| Citation | 90 Nev. 75,518 P.2d 604 |
| Parties | McDOWELL CONSTRUCTION SUPPLY CORP., Appellant, v. Thomas Mark WILLIAMS, Respondent. |
| Court | Nevada Supreme Court |
Thomas Mark Williams, the plaintiff-respondent, commenced this action in the district court to recover damages from the appellant-defendant, McDowell Construction Supply Corp., for injuries Williams received when he was struck by a large stack of plywood that fell from the rafters of a partially constructed church. The plywood had been delivered to the job site by a McDowell employee, Michael Foard, who unloaded the plywood through the use of a forklift. Pursuant to instructions given by the superintendent of the general contractor, Tobler and Oliver Construction Company, Foard placed the plywood on a special support in the rafters of the church. Williams claimed that Foard's negligence in stacking the plywood in the rafters caused the lumber to fall 3 days later, which resulted in the injuries Williams sustained while working on the job.
The case was tried to a jury, which returned a verdict in favor of Williams and against McDowell for the sum of $372,000. McDowell filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial; the trial judge denied the motion. McDowell has appealed from the verdict and the order denying its motion, specifying several assignments of error, which we reject as meritless. We affirm the judgment below.
McDowell's principal complaint on appeal is that the trial judge committed reversible error in instructing the jury. Appellant's defense to the action was based on the theory that Foard, when he acted under the instructions of Tobler and Oliver's general superintendent in stacking the plywood in the rafters of the church, became a 'special employee' of Tobler and Oliver and that he was then 'in the same employ' as Williams; that, as such, Williams was precluded from recovery under the common law tort action against McDowell and, rather, was limited to compensation under the Industrial Insurance Act. See NRS 616.370 1 and NRS 616.560. 2 The rejected instructions described, in general, a general employee, a special employee, an independent contractor, and a subcontractor, and their relationship for industrial compensation purposes.
McDowell's contention that Foard was a special employee of Tobler and Oliver is predicated on the 'loaned servant' doctrine. The courts have applied two tests in deciding the question of the 'loaned servant': (1) the 'control test', which emphasizes who has the right to control the borrowed employee and equipment used in performing the service; and (2) the 'whose business test', which stresses who receives the benefits from the service, as well as whether the service was within the normal scope of either employment. See Landis v. McGowan, 114 Colo. 355, 165 P.2d 180, 184 (1946).
In Landis, the court ruled that the preferred line of authorities was the 'control test'. The court said, 165 P.2d at 185:
'We believe that the better line of authorities, based upon our general concept of employer-employee relation, stems from the opinion of the New York Court of Appeals in the decision written by the late Mr. Justice Cardozo, then a judge of that court and subsequently an associate justice of the United States Supreme Court, in Charles v. Barrett, 233 N.Y. 127, 135 N.E. 199 (N.Y.1922), based, as we understand, largely on the 'control' rule. . . .
". . . The rule now is that, as long as the employee is furthering the business of his general employer by the service rendered to another, there will be no inference of a new relation unless command has been surrendered, and no inference of its surrender from the mere fact of its division. . . ."
We turn to examine the record in the instant case. The record shows that Foard's duties as a deliveryman for McDowell are undisputed. He was obligated to deliver plywood to the construction site of Tobler and Oliver. For this delivery service, Tobler and Oliver paid an additional $2 per thousand square feet of lumber delivered. The delivery included placing the plywood at various places at the construction site, which...
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