Richardson v. John T. Hardy & Sons, Inc.

• Decision Date: 27 June 1962
• Citation: 54 Del. 567,182 A.2d 901
• Court: Supreme Court of Delaware
• Parties: , 54 Del. 567 Kenneth L. RICHARDSON, Plaintiff Below, Appellant, v. JOHN T. HARDY & SONS, INC., a Delaware corporation, Defendant Below, Appellee, Delaware Contracting Company, a Delaware corporation, Defendant Below, Appellee, Facciolo Construction Company, and Benjamin Maddix, Third-Party Defendants, Appellees.

Page 901

182 A.2d 901

4 Storey 567, 54 Del. 567

Kenneth L. RICHARDSON, Plaintiff Below, Appellant, v. JOHN T. HARDY & SONS, INC., a Delaware corporation Defendant Below, Appellee Delaware Contracting Company, a Delaware corporation Defendant Below, Appellee Facciolo Construction Company, and Benjamin Maddix, Third-Party Defendants, Appellees.

Supreme Court of Delaware.

June 27, 1962.

An appeal from the Superior Court in and for New Castle county.

Normen N. Aerenson, of Aerenson & Balick, Wilmington, for Kenneth L. Richardson.

William F. Taylor, of Morford, Young & Conaway, Wilmington, for Joseph T. Hardy & Sons.

WOLCOTT, Justice, DUFFY, Judge, and SHORT, Vice Chancellor, sitting.

WOLCOTT, Justice.

This is an appeal by Kenneth L. Richardson, plaintiff, from the granting of a motion for summary judgment by Joseph T. Hardy & Sons, Inc., one of the defendants below. There are other defendants to the cause but for the purposes of this appeal the only party defendant in interest is Joseph T. Hardy & Sons, Inc. (hereafter Hardy).

The action is one for personal injuries arising in the following manner. Richardson is the employee of a plumbing contracting company and, as such, was assigned by his employer to the job of installing a sewer connection between a house then under construction and the main sewer line in the street. In order to install the connecting line it was necessary to dig a ditch running from the house to the street.

Richardson's employer did not have the necessary digging equipment and, consequently, rented at an hourly rate from Hardy a back hoe. Hardy also furnished an operator for the back hoe and paid his wages. The back hoe was operated by Benjamin Maddix, one of the defendants, and employed as a general equipment operator by Hardy. Maddix's wages were paid by Hardy who received as rent for the machine a sum sufficient to recompense it for the use of the equipment and the expense of its operation.

Maddix reported to the scene with the back hoe. Richardson, the foreman on the job, instructed Maddix where to dig the ditch and how deep it was to be. Richardson also staked out for Maddix's guidance the ditch, itself, and directed him on which side of the trench to pile the dirt removed in the course of excavation, since it is customary to pile it on one side of the trench only so as to leave the other side free for other purposes.

The trench was dug by Maddix as far as the street to a depth of approximately 10 feet. Remaining in the trench were two large rocks which could not be dislodged by the back hoe. Richardson thereupon arranged with another contractor, one of the defendants to this cause, to blast out the rocks. This was done.

After the blasting of the rocks, Richardson descended into the ditch in order to gather the rock fragments together and place them in the shovel of the back hoe to be removed. While engaged in this work, without warning, the trench caved in from whence came the injuries of which Richardson now complains.

Richardson charges that Hardy was negligent because, through its employee, Maddix, it piled the dirt too close to the trench when it knew or should have known that if the dirt was piled too close to the side of the trench it would cause the side wall to collapse.

Hardy moved for summary judgment in its favor. Judgment was entered in its favor on the ground that, even though Maddix was negligent, his negligence is not chargeable to Hardy because he, while in the general employ of Hardy, was a loaned employee to Richardson's employer and, thus, the operator's negligence, if any, was imputed to Richardson's employer and not to Hardy.

From this judgment Richardson appeals, asserting that the operator of the back hoe remained the employee of Hardy in the operation of that piece of equipment and that, accordingly, his negligence is imputed to his employer.

The general rule is that an employee, with his consent, may be loaned by his general employer to another to perform specific services, and that, in the course of and for the purpose of performing such services, he may become the employee of the specific employer rather than the employee of the general employer. Accordingly, a loaned employee may become the specific employer's employee while at the same time remaining, generally speaking, the employee of him who loans his services. Restatement of Agency 2d, § 227.

Whether or not a loaned employee becomes the employee of the one whose immediate purpose he serves is always a question of fact, and depends upon whether or not his relationship to the specific employer has the usual elements of the employer-employee status. Fundamentally, it is not important whether or not he remains the employee of the general employer as to matters generally. What is important to determine is, with respect to the alleged negligent act in question, whether or not he was acting in the business of and under the direction of the general or the specific employer. Restatement of Agency 2d, § 227, comment a; 35 Am.Jur., Master and Servant, § 541. This is almost always determined by which employer has the right to control and direct his activities in the performance of the act allegedly causing the injury, and whose work is being performed. Gallagher Transfer & Storage Co. v. Public Service Co., 111 Colo. 162, 138 P.2d 926; Wylie-Stewart Machinery Co. v. Thomas, 192 Okl. 505, 137 P.2d 556; Kessler v. Bates & Rogers Const. Co., 155 Neb. 40, 50 N.W.2d 553; Van Gorder v. Eastchester Estates, 207 Misc. 335, 137 N.Y.S.2d 789.

It is important in the case at bar to realize just what act of Maddix is pointed to as having caused Richardson's injuries. The alleged negligent act was...