Penrose v. Mitchell Bros. Crane Division, Inc.
| Decision Date | 12 April 1967 |
| Citation | 84 Or.Adv.Sh. 651,246 Or. 507,426 P.2d 861 |
| Parties | Marvin R. PENROSE, Respondent, v. MITCHELL BROS. CRANE DIVISION, INC., Appellant. |
| Court | Oregon Supreme Court |
Frank E. Day, Portland, argued the cause for appellant. With him on the brief were George M. Joseph, James G. Breathouwer, and Reiter, Day, Anderson & Wall, Portland.
Richard T. Kropp, Albany, argued the cause for respondent. With him on the brief were Willis, Kyle, Emmons & Kropp, Albany.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and FORT, JJ.
At the time of his injury plaintiff was employed by the Howard Brewton Company as a laborer. His employer was engeged as a general contractor in the construction of a building. The work, so far as here pertinent, involved the erection of precast concrete wall panels weighing approximately 25 tons each. In order to erect these wall panels, plaintiff's employer, Brewton, rented a selfoperating mobile crane from the defendant. Such a unit is a costly and complicated piece of machinery. The defendant furnished two of its own employees, both experienced specialists, with the crane. Each was obtained by the defendant through the appropriate union hiring hall for the Brewton job. One was known as a crane operator; the other as an oiler. The latter person, in addition to other duties about the machine, drove the mobile crane in accordance with the directions received by him from the crane operator. The crane operator had sole control over all activity of the crane itself. He was also in general charge of the whole mobile crane unit. The Brewton Company furnished a signalman to communicate with the crew of the mobile unit.
The normal procedure was for the crane to pick up a wall panel by hooking on to it. Outriggers on the mobile crane were then extended from it by hand and set into position on the ground. Its screw jacks were adjusted as needed to balance the crane. The oiler was directly responsible for their placement and movement. The panel was then lifted by the crane into an upright position clear of the ground. The outriggers, still under the direct control of the oiler, were then raised from the ground and returned by hand to their normal position. The mobile crane was next driven by the oiler the short distance necessary to place the panel in its proper position. It was held in position by the crane until it had been seated and then braced by a steel rod or rods extending past the mobile crane from the upper part of the panel downward and away from the panel and thence affixed to the ground.
A mobile scaffold-like staging was then moved by Brewton into the space between the crane and the panel. A laborer on the staging released the rigging from the panel thus freeing the crane. The oiler then drove the crane forward away from the panel thus ending that phase of the operation. In this case the plaintiff was the laborer on the staging. He released the rigging from the panel and the crane moved forward away from the wall. As it was doing so the panel fell outward against both the crane and the staging upon which plaintiff was working. Plaintiff was injured as a result.
The normal procedures had been employed, except as hereafter mentioned. Generally two braces were used to hold each panel in place. On this occasion only one was used. No one actually saw what caused the panel to fall. There was substantial evidence, however, from which the jury could have found that an outrigger extending from the crane on the side away from where the crane operator sat, had not been returned to its proper position after the panel was seated and braced. As a result it had hooked and badly bent the single brace supporting the panel as the crane drove away, thus causing the panel to fall. The oiler, one of defendant's employees, was the person who was responsible for the movement of the crane rig including control over the outriggers. One of his duties was the placement of the outriggers. The crane operator, defendant's employee in general charge of the rig, testified the left outrigger after the accident was in a position where it could have contacted the brace, and that no one had signalled him the outrigger had been taken in before the rig was driven away from the wall panel.
A Brewton employee served as signalman directing the crane operator when the crane might be moved away from the panel following the release of the rigging. The evidence was conflicting as to who, if anyone, gave the signal to the crane operator that it was all right for the rig to move away from the panel on this occasion. The crane operator here signalled the oiler to drive the rig away from the panel. Neither the crane operator nor the oiler from their operating seats could see whether the outriggers on the side away from them had been returned to their proper position. Neither checked to see.
Action was brought by plaintiff against the defendant charing violation of the Employers' Liability Act and common law negligence. The jury returned a verdict in his favor. Defendant at the close of the case moved for a directed verdict. It was denied. Failure to grant it is assigned as error. We think the ruling was correct.
The defendant in its brief asserts 'The fundamental question is the application of Thomas v. Foglio, 225 Or. 540, 358 P.2d 1066 (1961), under the facts of this case.' In this connection it contends the defendant here was not one 'having charge of, or responsible for any work'; that the defendant did not 'participate in the enterprise in some way' which 'must be more than a common interest in an economic benefit which might accrue from the accomplishment of the task'; and that there was not here 'an intermingling of duties and responsibility' of plaintiff's employer and the defendant.
We think the evidence here, as in Pruett v. Lininger, 224 Or. 614 at 622, 356 P.2d 547, 551 (1960), clearly established '* * * that the workmen of both employers were co-mingled in a common undertaking, all were exposed to the same hazards, and all were necessary to the completion of the work at hand.'
Defendant further contends that it merely supplied equipment 'to be used in the course of plaintiff's employment.' Here, however, the defendant's employees, who were on its payroll, were solely responsible for and did operate the mobile crane. Pruett v. Lininger, supra. The mobile crane was therefore clearly under the control of the defendant. The defendant was more than the supplier of the equipment. It was the operator.
Finally, defendant contends that its two employees, the crane operator and the oiler who operated the mobile crane, were loaned servants and that therefore at the time of the accident they were 'employees' of Brewton within the meaning of the Employers' Liability Act. As such, it is urged that the defendant is not liable for their acts while they were working under the supervision and control of Howard Brewton Company, the plaintiff's employer. It therefore becomes necessary to consider the loaned servant doctrine.
The loaned servant doctrine 1 has its origin in the rule, now adopted in Restatement 2d, 500, Agency § 227: 2
'A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services. He may become the other's servant as to some acts and not as to others.
'Comment:
'a. * * * Starting with a relation of servant to one, he can become the servant of another only if there are the same elements in his relation to the other as would constitute him a servant of the other were he not originally the servant of the first. * * * 'b. * * * In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.
'c. * * * a continuation of the general employment is indicated by the fact that the general employer can properly substitute another servant at any time, that the time of the new employment is short, and that the lent servant has the skill of a specialist.
'A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value. * * *'
The Supreme Court of Pennsylvania in Mature v. Angelo, Appellant, 373 Pa. 593, ...
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