Skornia v. Highway Pavers, Inc.

• Decision Date: 04 June 1968
• Citation: 159 N.W.2d 76,39 Wis.2d 293
• Parties: Paul R. SKORNIA, Plaintiff-Respondent, v. HIGHWAY PAVERS, INC., Defendant-Appellant, Allan Axt, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 76

159 N.W.2d 76

39 Wis.2d 293

Paul R. SKORNIA, Plaintiff-Respondent, v. HIGHWAY PAVERS, INC., Defendant-Appellant Allan Axt, Defendant-Respondent.

Supreme Court of Wisconsin.

June 4, 1968.

Rehearing Denied Sept. 6, 1968.

Prosser, Zimmermann, Wiedabach, Koppa & Lane, Milwaukee, for appellant.

Sidney Spector, Milwaukee, for plaintiff-respondent.

Niebler & Herro, Milwaukee, for defendant-respondent; Chester J. Niebler, Milwaukee, of counsel.

HEFFERNAN, Justice.

This case ¹ is governed by the familiar rule that the findings of a trial court will not be set aside unless they are contrary to the great weight and clear preponderance of the evidence. Two findings are of significance here: (1) That Axt neither expressly nor impliedly consented to work for a special employer--that all he did was to perform the work of Highway Pavers as it was assigned to him by Prekop; and (2) that the control over Axt exercised by Skornia was so minimal that it cannot be implied from that control that an employer-employee relationship arose.

We conclude that the trial court properly applied the rule that one cannot be considered a loaned employee thus making the special employer liable, unless there is evidence, express or implied, that the employee consented to the changed relationship.

That proposition is set forth in Edwards v. Cutler-Hammer, Inc. (1956), 272 Wis. 54, 56, 57, 74 N.W.2d 606, 607:

'The law is clear that if the one to whom an employee is lent is the master of the servant at the very time the negligent act occurs, it is upon him, as a special employer, that the liability rests. If the one lending the employee is his master at the very time of the injury, then he, as general employer, contracts the liability.

'In the first place, in order that the general employer be relieved from liability and the special employer become liable, there must be a consensual relationship between the employee and the borrowing or special employer. Since the employee-employer relationship is based on contract, it is essential that the employee understand the existence of and agree to the temporary new relationship. If such a consensual relationship, either express or implied, does not exist, then the law is clearly settled that the one to whom the employee is lent is not his master and cannot be held liable for the servant's negligent act. It therefore follows that the general employer remains the master of the servant, and the liability is his.'

In Springfield Lumber, Feed & Fuel Co. v. Industrial Comm. (1960), 10 Wis.2d 405, 409, 410, 102 N.W.2d 754, 757, we said:

'* * * the most important (test) is the first, viz., did the employee actually or impliedly consent to work for the special employer. Hanz v. Industrial Comm., 1959, 7 Wis.2d 314, 96 N.W.2d 533. Mortimer Levitan, in his article entitled, 'Loaned Employees,' 27 Wisconsin Bar Bulletin, October, 1954, pages 7, 8, succinctly states:

"An employee simply cannot be transferred to a special employer without his consent.'

'1 Larson, Law of Workmen's Compensation, (p. 710,) sec. 48.10, points out the necessity of there being a contract of employment between the loaned employee and the special employer before such employee can be determined to have been employed by the special employer. We quote from such section of this text as follows (Ibid, p. 711):

"In compensation law, the spotlight must now be turned upon the employee, for the first question of all is: did he make a contract of hire with the special employer? If this question cannot be answered 'yes,' the investigation is closed, and there is no need to go on into tests of relative control and the like."

It is argued by appellant that these rules are applicable only to workmen's-compensation cases and not to questions of liability to third persons. Most cases of 'loaned servants' have arisen out of an injury to the employee whose status is in question, and hence they usually involve the law of workmen's compensation. However, we see no reason why a different rule of agency should be applied when the injury is to a third person, for the same legal question arises--i.e., who is the responsible sponsible master or who is liable under the doctrine of respondeat superior. The Restatement, Agency, makes no distinction, in respect to this problem, between compensation cases and liability cases; and a perusal of the Restatement text indicates that the same legal criteria are to be applied in either case. The Restatement, 1 Agency 2d, sec. 227, p. 500, recognizes the rule that a servant may be loaned, thus placing the burden of respondeat superior on the new master. In comment a, p. 501, to the general rule it is pointed out that:

'* * * 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.'

Comment b provides:

'b. Inference that original service continues. 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.'

Comment c provides in part:

'c. Factors to be considered. * * *

Thus 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. Normally, the general employer expects the employee to protect his interests in the use of the instrumentality, and these may be opposed to the interests of the temporary employer. * * *'

Thus, we...