Nakagawa v. Apana

• Decision Date: 23 November 1970
• Docket Number: No. 4944,4944
• Citation: 477 P.2d 611,52 Haw. 379
• Parties: Hiroshi NAKAGAWA v. Helen APANA, dba Maui Metal Company.
• Court: Hawaii Supreme Court

Page 611

477 P.2d 611

52 Haw. 379

Hiroshi NAKAGAWA v. Helen APANA, dba Maui Metal Company.

No. 4944.

Supreme Court of Hawai'i.

Nov. 23, 1970.

Syllabus by the Court

1. When a master rents the services of an employee for the operation of an instrumentality owned by the master and gives the hirer the power to direct the servant where to go and what to do in the performance of the work without relinquishing to the hirer the power to discharge such servant, the legal presumption is that the servant remains, in the absence of an agreement to the contrary, the servant of the general employer insofar as it concerns the manner and method of operating the instrumentality. The negligence of the servant must be held to be that of the owner of the instrumentality.

2. The general employer may lend his servant together with an instrumentality in such a manner as to render the person to whom the servant is loaned a special master for this one particular occasion and hence relieve the general employer from liability for the servant's negligence in the operation of the instrumentality.

3. When a timely motion for a new trial has been filed, the trial court should allow, in the exercise of sound judicial discretion, a subsequent amendment of the motion to state additional grounds for the granting of the motion even though made after the 10-day period of Rule 59(b) if it will serve the ends of justice.

4. A finding of an amount of damages is so much within the exclusive province of the jury that it will not be disturbed on appellate review unless palpably not supported by the evidence, or so excessive and outrageous when considered with the circumstances of the case as to demonstrate that the jury in assessing damages acted against rules of law or suffered their passions or prejudices to mislead them.

Richard E. Stifel, Jenks, Kidwell, Goodsill & Anderson, George R. Ariyoshi, Honolulu, for appellant.

Frank D. Padgett, Padgett, Greeley, Marumoto & Akinaka, Honolulu, for appellee.

Before RICHARDSON, C. J., ABE and LEVINSON, JJ., Circuit Judge DOI in place of MARUMOTO, J., disqualified and Circuit Judge KABUTAN in place of KOBAYASHI, J., disqualified.

RICHARDSON, Chief Justice.

On October 31, 1967, plaintiff-appellee, Hiroshi Nakagawa, an employee of Johnson Pacific Company (hereinafter referred to as Johnson Pacific), was working on the roof of the Maui Community College Building when he was struck by a bucket of cement. The cement bucket was being lifted to the roof of the building by a crane owned by the defendant-appellant, Helen Apana, and operated by Rusty Apana. His signal man was Joseph Kaiwi. Both Kaiwi and Rusty Apana were employees of the defendant. Suit was filed against the owner of the crane for the negligence of its employees on the theory of respondeat superior. The jury found for the plaintiff and awarded damages in the amount of $190,000.

Defendant specifies two points of error. (1) The trial court erred in not granting motions for a directed verdict and for judgment notweithstanding the verdict and for contention is that the evidence was insufficient and required a finding for the defendant on the motion for a directed verdict, and the evidence did not support the verdict of the jury. In arguing for the motions, the defendant claims that the evidence requires a finding that at the time of the accident in which plaintiff was injured, the crane operator and signal man were employees of and under the supervision and control of Johnson Pacific. Such a finding would relieve the defendant of any negligence for which the crane operator or signal man may have been liable. (2) The trial court erred in refusing to consider, on the ground it was untimely, defendant's argument, in support of an amended motion for a new trial, that the verdict was excesive.

I.

The principal question we address ourselves to on this appeal is whether the evidence was sufficient to support the judge's denial of defendant's motion for a directed verdict and the jury's verdict insofar as it found Kaiwi and Rusty Apana to be the servants of the defendant at the time the negligent act occurred. Essentially, therefore, we have a case dealing with the 'loaned servant' doctrine.

There are certain well-settled rules of law applicable to this class of cases.

1. A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. Matsumura v. County of Hawaii, 19 Haw. 496 (1909); 1 Restatement of Agency 2d § 219.

2. When a master rents the services of an employee for the operation of an instrumentality owned by the master and gives the hirer the power to direct the servant where to go and what to do in the performance of the work without relinquishing to the hirer the power to discharge such servant, the legal presumption is that the servant remains, in the absence of an agreement to the contrary, the servant of the general employer insofar as it concerns the manner and method of operating the instrumentality. The negligence of the servant must be held to be that of the owner of the instrumentality. Billing v. Southern Pacific Co., 189 Cal. 477, 485, 209 P. 241, 244 (1922).

3. However, the general employer may lend his servant together with an instrumentality in such a manner as to render the person to whom the servant is loaned a special master for this one particular occasion and hence relieve the general employer from liability for the servant's negligence in the operation of the instrumentality. Burns v. Jackson, 59 Cal.App. 662, 211 P. 821 (1922); Linstead v. Chesapeake & Ohio Ry., 276 U.S. 28, 48 S.Ct. 241, 72 L.Ed. 453 (1928); McCollum v. Smith, 9 Cir., 339 F.2d 348 (1964); 1 Restatement of Agency 2d § 227.

4. But, in order to constitute an employee a loaned servant, it is not essential that the general employer relinquish full control over his employee, or that the special employee be completely subservient to the borrower. While the borrower must possess the power of 'authoritative direction and control' over the employee so that his directions will have 'the force of a command,' this authority need not extend over every incident of an employer-employee relationship, but only over the servant's performance of the particular work in which he is engaged at the time of his negligent act or omission. ¹ McCollum v. Smith, supra, 339 F.2d at 351. And in this regard the United States Supreme Court in the now classic case of Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909), was careful to distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking. 212 U.S. at 222, 29 S.Ct. 252.

5. Furthermore, in the absence of evidence to the contrary, there is an inference that an employee remains in his general employment so long as by rendering service to another he is performing the business entrusted to him by the general employer. 1 Restatement of Agency 2d § 227, Comment (b). Accordingly, in such a situation, the burden of proof is upon the person seeking to establish that the original service does not continue and that the person is in fact a loaned servant. Kiff v. Travelers Ins. Co., 402 F.2d 129 (5th Cir. 1968).

Applying these rules to the evidence in the record, our problem is this: Is the evidence sufficient to support the conclusion that Joseph Kaiwi and Rusty Apana were in fact servants of the defendant and not loaned servants of Johnson Pacific, at the time the alleged negligent act occurred.

In reviewing the evidence neither the trial court nor this court should direct a verdict or set aside a verdict unless the evidence as a matter of law is insufficient to justify the submission of the case to the jury. In order to sustain this contention it would be necessary to decide that there was no substantial evidence contrary to appellant's position. Mossman v. Sherman, 34 Haw. 477, 479 (1938); Apo v. Dillingham Investment Corp., 50 Haw. 369, 440 P.2d 965 (1968); Striker v. Nakamura, 50 Haw. 590, 446 P.2d 35 (1968). This, under the evidence before us, we cannot do.

The record contains the following uncontradicted evidence: (1) The defendant was the general employer of Kaiwi and Rusty Apana; (2) Kaiwi and Apana were paid wages by the defendant; (3) the defendant rented two cranes to Johnson Pacific with four employees to operate them, two operators and two signal men; (5) the defendant's employees maintained and operated the cranes; (6) both Kaiwi and Apana were trained in their particular operations of crane operator and signal man; (7) the training was conducted at defendant's yard and with defendant's equipment; (8) the manner in which Kaiwi and Apana operated the crane was left entirely to them.

Furthermore, the evidence, although contradicted in part, showed: (1) Kaiei and Rusty Apana were expected to get the concrete up on the roof and to the places indicated by the foreman of Johnson Pacific. The manner in which they operated the crane was left entirely to them. When the foreman indicated he was ready for the next bucket of concrete and where it was to be placed, Kaiwi, the signal man, would give the necessary hand signals to Rusty Apana, the crane operator. At no time did the foreman or other employees of Johnson Pacific control the manner in which the bucket was lifted and lowered to the desired locations. (2) The power to substitute was in the defendant inasmuch as Rusty Apana told Kaiwi immediately following the accident to stay off the roof. (3) The period of employment was short, i. e., they were called in for a one-day pour.

There is an abundance of crane and equipment cases dealing with this particular problem. As mentioned earlier, perhaps the classic case in this area is Standard Oil Co. v. Anderson, supra, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909). In that case, the plaintiff was employed as a...