Miller v. Woolsey
Decision Date | 11 January 1949 |
Docket Number | 47342. |
Citation | 35 N.W.2d 584,240 Iowa 450 |
Parties | MILLER v. WOOLSEY. |
Court | Iowa Supreme Court |
Rehearing Denied March 11, 1949.
Alfred Rothschild, of Waterloo, for appellant.
Mosier & Mosier and Pike, Sias, Butler & Hoxie, all of Waterloo, for appellee.
Plaintiff brought an action for damages against defendant claiming that a wall of a building under construction by plaintiff was knocked down through the negligent operation of an earth moving machine or bulldozer operated by an employee of the defendant. It is defendant's claim that the record discloses the operator of the machine was under the control and supervision of the plaintiff and consequently a 'borrowed servant', and under the rule of law heretofore announced by this and other appellate courts relative to such a situation she could not be held liable. The case was tried to the court, a jury being waived. It filed a written opinion and held the operator of the bulldozer was, under the evidence presented, a servant of the plaintiff and that the defendant could not be held liable for the damage claimed to have been done by the operator of the bulldozer in the moving of dirt on plaintiff's property. It further held that by reason of its announced conclusions it did not need to pass on the question of the operator's claimed negligence, the possible contributory negligence of the plaintiff, or the proximate cause of the accident. It dismissed plaintiff's petition and entered judgment against him for cost. He has appealed.
There had been erected at the time of the claimed negligence sidewalls twelve feet eight inches high on the east, north and west sides. The south wall had been constructed up to the grade level. The walls were of cement block construction, placed on concrete. In connection with the contemplated later use of the building it was necessary to do a certain amount of grading and filling in with dirt inside the walls. Appellant called the manager of the appellee by telephone and told him he wanted to hire a bulldozer for this purpose which was brought to the appellant's property and work was commenced. It is shown that during these operations a truck that had brought dirt into the inclosed area had become mired. The bulldozer which had been operating in a south to north direction swung around this truck and moved in a west to east direction toward the east wall. It was at the time of the movement of the bulldozer toward the east wall that the wall collapsed. It was testified to by one of the witnesses who was standing about four feet from the wall that he observed the bulldozer going east. This witness did not see whether the bulldozer itself or the dirt pushed by it hit the wall or that the blade contacted it. There is testimony that when appellant cleaned up the cement blocks of the fallen wall the following morning he found horizontal cut marks on the face of two of them.
It is the claim of the appellant that the court erred in denying recovery to him for the reasons, (a) that the record does not contain sufficient evidence to support the holding that the appellee surrendered all control and direction of his servant to the appellant so as to make him alone liable for the acts of the servant; and (b) that the record does contain sufficient evidence to charge the operator of the bulldozer with actionable negligence.
In connection with our consideration whether the record contains sufficient evidence to justify the holding of the trial court that the appellee surrendered all control and direction of his servant to the appellant we deem it advisable to set out certain of the testimony.
Ned Woolsey manager for the defendant appellee, was called by the appellant as one of his witnesses and testified, in part, as follows:
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John S. Miller, the appellant, testified, in part, as follows:
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Relative to the bulldozer operator Miller testified, in part, on cross-examination as follows:
The record further shows that after the wall fell the appellant told the operator that he might as well quit for the day. However, he continued working until the trucks within the building were unloaded. No new dirt was brought into the building after the accident. A review of the evidence shows that the operator had not been directed to move the dirt behind the mired truck.
I. The case of Anderson v. Abramson, 234 Iowa 792, 13 N.W.2d 315 is the most recent pronouncement of this court on the question of the borrowed servant doctrine. It is...
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