Parker v. Williams & Madjanik, Inc.

• Decision Date: 29 November 1977
• Docket Number: No. 20551,20551
• Citation: 269 S.C. 662,239 S.E.2d 487
• Court: South Carolina Supreme Court
• Parties: Carol Ann PARKER, Administratrix of the Estate of Donnie Edward Parker, Appellant, v. WILLIAMS & MADJANIK, INC., J. M. Ford, Ansley and Sutton Construction Company, Charles Ackley, James J. Reinbolt, James L. Williams, Donald Madjanik, William A. Nolan and George E. Darmstatter d/b/a Island Properties, of which Ansley and Sutton Construction Co., is Respondent.

Page 487

239 S.E.2d 487

269 S.C. 662

Carol Ann PARKER, Administratrix of the Estate of Donnie Edward Parker, Appellant, v. WILLIAMS & MADJANIK, INC., J. M. Ford, Ansley and Sutton Construction Company, Charles Ackley, James J. Reinbolt James L. Williams, Donald Madjanik, William A. Nolan and George E. Darmstatter d/b/a Island Properties, of which Ansley and Sutton Construction Co., is Respondent.

No. 20551.

Supreme Court of South Carolina.

Nov. 29, 1977.

Murdaugh, Peters, Parker & Eltzroth, Hampton, and Moss, Carter, Branton & Bailey, Beaufort, for appellant.

Barnwell, Whaley, Stevenson & Patterson, Charleston, for respondent.

GREGORY, Justice:

This appeal is from the order of the lower court granting respondent Ansley and Sutton Construction Company's motion for summary judgment. The question presented is whether this action is barred by Section 42-5-10, 1976 Code of Laws of South Carolina. We find the action is not barred and reverse.

On appeal from an order granting respondent's motion for summary judgment we will review the evidence and all inferences reasonably deducible therefrom in the light most favorable to appellant. Summary judgment should be granted only where it is clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. C.I.T. Financial Services v. Hunt, 267 S.C. 644, 230 S.E.2d 713 (1976).

Appellant's decedent was employed by Yetter Homes as a construction worker. Williams & Madjanik, Inc. was the prime contractor on a project for Island Properties, and Yetter Homes had subcontracted to install roofing on the buildings under construction. Ansley and Sutton is in the business of leasing construction equipment.

Yetter Homes leased a crane from Ansley and Sutton for the purpose of erecting roof trusses at the job site. Ansley and Sutton agreed to deliver a crane and operator on January 1, 1974 for a fixed hourly rate that included the wages of the operator.

On the day in question Yetter Homes directed the crane operator to place a load of plywood on the roof of a building where appellant's decedent was working. The weight of the plywood caused the roof to collapse, killing the decedent.

Decedent's employer paid the maximum workmen's compensation death benefit, and appellant brought this wrongful death action against Ansley and Sutton and others.

Based on the pleadings and depositions the lower court granted summary judgment in favor of Ansley and Sutton after finding that Ansley and Sutton was conducting the business of Yetter Homes at the time of the accident and that the deceased and the crane operator were co-employees. The lower court held the action was barred by Section 42-5-10, 1976 Code, which provides:

Every employer who accepts the compensation provisions of this Title shall secure the payment of compensation to his employees in the manner provided in this chapter. While such security remains in force he or those conducting his business shall only be liable to any employee who elects to come under this Title for personal injury or death by accident to the extent and in the manner specified in this Title.

Although this section has been interpreted to preclude actions against co-employees, Nolan v. Daley, 222 S.C. 407, 43 S.E.2d 449 (1952), a fellow employee is not exempt from common law liability by virtue of Section 42-5-10 "unless at the time of the delict, the employee so exempted was performing work incident to the employer's business under circumstances which, in the absence of an applicable common law defense, would have rendered the employer liable at common law, for the acts of the employee under the doctrine of respondeat superior." Williams v. Bebbington, 247 S.C. 260, 146 S.E.2d 853, 855-856 (1966); Boykin v. Prioleau, 255 S.C. 437, 179 S.E.2d 599, 600 (1971).

In order for the crane operator to be immune from suit under Section 42-5-10 as a co-employee of the deceased, he must have been engaged in a course of conduct at the time of the delict that would have rendered Yetter Homes liable at common law under the doctrine of respondeat superior. If the operator is immune from suit, then Ansley and Sutton is likewise relieved of its vicarious liability.

Yetter Homes could be held responsible for the actions of the crane operator under the doctrine of respondeat superior only if the relationship of master and servant, or employer and employee, existed between the two at the time of the accident. While it is clear an employer may lend his employee to another so as to be relieved from liability for an injury caused by the negligence of the employee in performing work for the other, Hutson v. Herndon, 243 S.C. 257, 133 S.E.2d 753 (1963), it is equally true that an employer may direct his employee to go upon the premises of another and perform work there under the general supervision of the other person without severing the employment relation between the employer and the employee.

The test generally used in determining whether an employee...