Southern Cement Co. v. Patterson, 6 Div. 507

• Decision Date: 26 May 1960
• Docket Number: 6 Div. 507
• Parties: SOUTHERN CEMENT COMPANY v. John W. PATTERSON.
• Court: Alabama Supreme Court

Page 386

122 So.2d 386

271 Ala. 128

SOUTHERN CEMENT COMPANY v. John W. PATTERSON.

6 Div. 507.

Supreme Court of Alabama.

May 26, 1960.

Rehearing Denied Aug. 18, 1960.

John P. Ansley and Spain, Gillon & Young, Birmingham, for appellants.

Hogan, Callaway & Vance, Birmingham, for appellee.

MERRILL, Justice.

This is an appeal by Southern Cement Company, a Corporation; American-Marietta Company, a Corporation; and Southern Cement Company, Division of American-Marietta Company, a Corporation, from a judgment against them for $76,350. Motion for a new trial was overruled after appellee filed a remittitur of $25,000.

The three appellants are actually one company but the company is known by at least three different names. Each filed a general appearance and each pleaded the general issue in short by consent, and all three took an appeal.

Practically all the appellants' witnesses referred to the company as 'Southern Cement Company,' and appellants' counsel used that name in his direct examination of the witnesses and in his cross-examination of the president of the company.

The answers to interrogatories stated the name as 'Southern Cement Co., Division of American-Marietta Company.' One of appellants' counsel stated the name to the court as 'Southern Cement Company, American-Marietta Division.' Another stated 'The operation here is the Southern Cement Company, a Division of American-Marietta.' The court then asked, 'Is that a legal entity?' The answer was: 'That is a corporation, yes, sir.' The president of the company testified that the full and correct name of the company was 'Southern Cement Company, Division of American-Marietta which is an Illinois Corporation.'

There is no question but that all the different names applied to the operation where appellee received his injuries. We have held that one who is as well known by one name as another can sue or be sued by either name. Jackson Lumber Co. v. Butler, 244 Ala. 348, 13 So.2d 294. In Woodmen of the World v. Maynor, 206 Ala. 176, 89 So. 750, 753, the plaintiff sued 'Woodmen of the World, a corporation.' The correct name was 'Sovereign Camp of the Woodmen of the World.' The defendant filed the plea of the general issue and nine special pleas, but did not file plea of misnomer or plea of nul tiel corporation. The plea of general issue, signed by attorneys for defendant, as here, caused the court to presume that the name as stated was proper. The court said 'The question of its name should have been raised by the defendant by proper plea.' We consider our reference to 'appellants' in this opinion as referring to the true defendant, regardless of what its correct name might be. The trial court properly refused the requested affirmative charges for some of the named appellants, because of the uncertainty as to the correct name of the defendant among defendants and their counsel.

The complaint claimed $85,000 as damages for injuries sustained by the appellee (plaintiff) on, to-wit, July 18, 1957. It was claimed that appellee was an employee of Contractors Equipment Rental Company and on said date, Contractors Equipment Rental Company had a contract or agreement with the appellants to do or perform certain work on the premises of the appellants at the Roberta Plant near Calera, Alabama; and that while appellee was on said premises performing his work, an employee of the appellants negligently operated a crane so as to cause his injuries and damages. Appellants' chief defense was the loaned servant doctrine.

A petition for intervention was filed by Employers Insurance Company, and when granted, a complaint was filed claiming $4,103.65 as reimbursement for amounts it would have to pay under a Workmen's Compensation policy. It was stipulated that the intervenor had paid $1,397.75 to plaintiff as of the date of trial.

The appellee, John W. Patterson, was an iron worker employed by Contractors Equipment Rental Company, which was engaged in installing certain machinery and erecting steel structures under an oral contract on the premises of the Roberta Plant near Calera, Alabama, which is a lime and cement operation. At the time of the accident, in which appellee sustained his injuries on July 18, 1957, he was working with a crew of men engaged in moving and installing a hopper in what is called the 'crane building' on the premises of the Roberta Plant. The installation of this hopper was a part of the contract or agreement of Contractors Equipment Rental Company. To move this hopper into place, they elected to use the overhead crane which was already installed in the building. The crane was being operated by Chester Carlee who, during his regular course of employment, was a crane operator for Southern Cement Company, Division of American-Marietta Company, a Corporation.

The crane was an overhead type which ran on rails some forty or fifty feet above the floor of the 'crane building.' Ordinarily, a bucket was suspended on three cables from the crane. Two of the cables held the bucket and a third was for the purpose of opening and closing the bucket. In order to move the hopper, it was necessary to remove the bucket. The two holding cables were removed at the point where they joined the bucket. The closing line could more easily be removed at the top where it was attached to the drum on the crane.

Four men, including appellee, who were employees of Contractors Equipment Rental Company, climbed the ladder at the side of the building and onto the carriage of the crane to disengage the closing line. Carlee was standing near the carriage of the crane watching them work. After the closing line was disconnected and lowered to the floor, three of the four men climbed down from the crane. The foreman instructed appellee to remain there until a rope attached to the cable could be pulled back up to the top of the crane. While engaged in so doing, Carlee started up the crane. Whether he had been given the signal to do so was disputed, but signal or no, it was improper for him to start the crane with a man upon it.

As the crane started and its shaft turned, appellee's pant's leg was caught and he was pulled down into the whirling shaft before the shaft was finally stopped, and the injury to his right leg was about as severe an injury as one can stand without having the leg amputated.

Appellee seeks recovery against all appellants on the basis that the crane operator, at the time and place of the accident, was an employee of all appellants acting within the line and scope of his employment.

The appellants take the position that even if Carlee was negligent, he had been borrowed by Contractors Equipment Rental Company, an independent contractor, to assist them in moving the hopper and that he was the employee of Contractors Equipment Rental Company at said time and place.

It is not denied on this appeal that Carlee was negligent in operating the crane and that appellee's leg was mangled permanently as a result of the negligence.

Appellants contend that although Carlee was a general employee of appellants, he was loaned to appellee's employer when appellee was injured. This precise issue was submitted to the jury and resolved against appellants. They now urge that they were entitled to the affirmative charge on this point.

In our recent case of Jeffrey Manufacturing Company v. Hannah, 268 Ala. 262, 105 So.2d 672, 674, we said:

'We shall not attempt to discuss the decisions of this and other courts in this field. It seems to be quite generally agreed that in order to transfer the employer-employee relationship from the general employer to the one to whom the employee is loaned there must be some consensual relationship between the loaned employee and the employer whose service he enters sufficient to create a new employer-employee relationship. Where an employee enters the service of another at the command and pursuant to the direction of the master, no new relationship is necesarily created, particularly where, as here, the employee was assured of his continuing status as an employee of the general employer and was given the new assignment for the purpose of becoming better equipped to perform services for the general employer. Rhinelander Paper Co. v. Industrial Commission, 206 Wis. 215, 239 N.W. 412; Ryan v. Twin City Wholesale Grocer Co., 210 Minn. 21, 297 N.W. 705.'

We also noted that one question to be answered is--whose work was the servant doing and under whose control was he doing it? In answering this question, several principles are stated in United States Steel Corporation v. Mathews, 261 Ala. 120, 73 So.2d 239: (1) It is the reserved right of control rather than its actual exercise that furnishes the true test of relationship; (2) he is master who has supreme choice, control and direction of the servant and whose will the servant represents in the ultimate result and in all its details; (3) the fact that the borrower gives information and directions to the servant as to the details of the...