Storrusten v. Harrison, 13142

• Decision Date: 03 May 1976
• Docket Number: No. 13142,13142
• Citation: 549 P.2d 464,169 Mont. 525
• Parties: John STORRUSTEN, Plaintiff and Appellant, v. Robert HARRISON et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 464

549 P.2d 464

169 Mont. 525

John STORRUSTEN, Plaintiff and Appellant, v. Robert HARRISON et al., Defendants and Respondents.

No. 13142.

Supreme Court of Montana.

Submitted March 12, 1976.

Decided May 3, 1976.

McKittrick & Duffy, Joseph W. Duffy argued, Great Falls, for plaintiff-appellant.

Corette, Smith & Dean, Gerald R. Allen argued, Poore, McKenzie, Roth, Robischon and Robinson, Allen R. McKenzie argued, Butte, for defendants-respondents.

DALY, Justice.

Plaintiff, John O. Storrusten appeals from summary judgment entered by the district court, Beaverhead County, for defendants Kehrwald Construction Company and Robert Harrison, relieving them of liability for plaintiff's injury.

The events leading to plaintiff's injury are: On May 17, 1971, defendant Harrison contracted with defendant Kehrwald Construction Company for the construction of a calving shed on Harrison's ranch property in Beaverhead County. Pursuant to this contract, Kehrwald Construction purchased numerous fifty-foot trusses from Brenna Truss Company in Great Falls, Montana, with the understanding that the trusses would be delivered to the construction site by Brenna. Plaintiff Storrusten, an employee of Brenna, helped load the trusses on a truck and delivered them to the ranch on July 12, 1971. Upon arrival, plaintiff was asked by defendants to participate in the unloading of the trusses. Harrison provided his own services, as well as that of his employee Jin McAndrews, and a tractor loader. Melford Kehrwald, owner of Kehrwald Construction, provided his services as well as that of his father, Charles Kehrwald.

The unloading procedure was: plaintiff would cut some of the bands holding the bundled trusses and chain up those trusses to be removed; the remaining band was held in place to keep the trusses from springing apart until Storrusten could be clear. Once he was clear he would signal Charles Kehrwald, who would then cut the remaining band. McAndrews, operating the tractor-loader, would hoist the trusses off the truck. Harrison and Melford Kehrwald then stacked the unloaded trusses.

No problem developed in the unloading until the last bundle. At that time, Storrusten alleged Charles Kehrwald cut the last band before he had an opportunity to get out of the way and Storrusten was struck by the falling trusses, sustaining serious neck and shoulder injuries.

The amended complaint alleged Storrusten received these injuries as a direct and proximate result of the negligence of Charles Kehrwald, while acting within the scope of his employment for Kehrwald Construction Company, Harrison, or both.

Depositions were taken of Storrusten, Harrison, Melford Kehrwald and Charles Kehrwald. Finding the loaned servant doctrine applicable, the district court granted summary judgment to Kehrwald Construction. Apparently agreeing with Harrison's contention as to the lack of responsibility on his part for the unloading operation, the district court also granted summary judgment to Harrison.

The issues on appeal are:

(1) Was summary judgment in favor of Kehrwald Construction Company proper upon the facts before the district court?

(2) Was summary judgment in favor of Robert Harrison proper upon the facts before the district court.

Under Rule 56(c), M.R.Civ.P., defendants, being the moving parties for summary judgment, had the burden of proving the absence of any genuine issue as to any material fact to be entitled to judgment, as a matter of law. Stensvad v. Miners & Merchants Bank, 163 Mont. 409, 517 P.2d 715. In determining the extent of the moving party's burden in a summary judgment action, this Court in Kober & Kyriss v. Billings Deaconess Hospital, 148 Mont. 117, 122, 417 P.2d 476, 478, recognized the principle of law stated in 6 Moore's Federal Practice, § 56.15(3) and quoted:

"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact."

In view of these considerations, we hold Harrison met this burden, but Kehrwald Construction Company did not. Considering the summary judgment in favor of Kehrwald Construction Company, the memorandum accompanying the district court's order stated the loaned servant doctrine precluded Kehrwald Construction Company from being held liable for Storrusten's injuries. Plaintiff, on the other hand, contends Kehrwald Construction failed to meet its burden of conclusively showing that Charles Kehrwald, the man whose actions allegedly proximately caused plaintiff's injuries, became the borrowed servant of plaintiff for the duration of the unloading operation. After examining the record, we agree with plaintiff's contention. The record reveals Charles Kehrwald was in the employ of Kehrwald Construction Company.

In an action where the loaned servant doctrine becomes an issue, the ultimate question is-in whose business was the servant engaged? Devaney v. Lawler Corp., 101 Mont. 579, 56 P.2d 746. Depending upon the circumstances of any given case several factors may be considered, but only two facotrs need be discussed here as they are dispositive of the issue.

(1) Under whose control and direction was the unloading conducted?

(2) For whose benefit was this operation undertaken?

As to the question of control and direction, there is a substantial dispute. Kehrwald Construction Company relies upon the uncontested fact that plaintiff chained the trusses for unloading and directed the cutting of the bands, for its position that plaintiff was directing the unloading. At one point in his deposition plaintiff stated he directed the unloading. However, other statements by plaintiff in his deposition and others present during the unloading, tend to point to a different conclusion. Plaintiff testified he was not instructed by Brenna Truss Company to see to the unloading. Only when such specific instructions were given by Brenna was it customary for him to undertake such an operation. In fact, it was Melford Kehrwald who solicited both manpower and equipment for the unloading. Additionally, Melford Kehrwald professed ignorance as to the method of unloading and asserted this was the reason plaintiff directed the operation. Yet under questioning Melford Kehrwald admitted he had unloaded trusses before. After Storrusten was injured, Melford Kehrwald and the other men did not seem to have any great difficulty in unloading the remaining trusses. Finally, Melford Kehrwald admitted directing the actual truss unloading from the truck. In view of these facts it becomes an open question whether plaintiff was the person in charge of the unloading operation.

In summary of the direction-control factor under the loaned servant doctrine, we believe the statement of the United States Supreme Court in the landmark loaned servant case Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480, 485, is apropos to the circumstances here.

'Much stress is laid upon the fact that the winchman obeyed the signals of the gangman, who represented the master stevedore, in timing the raising and lowering of the cases of oil. But when one large general work is undertaken by different persons, doing distinct parts of the same undertaking, there must be cooperation and co-ordination, or there will be chaos. The giving of the signals under the circumstances of this case was not the giving of orders, but of information; and the obedience to those signals showed co-operation rather than subordination, and is not enough to show that there has been a change of masters.'

As to the question of benefit from work done, this Court has had occasion to consider it as a factor in loaned servant litigation in the past. Lewis v. Potter, 149 Mont. 430, 427 P.2d 306; Western Foundry, Inc. v. Matelich, 150 Mont. 228, 433 P.2d 789. We again find it an important factor in the instant case.

Plaintiff contends that all unloading work undertaken after the delivery of the trusses to the Harrison ranch accrued to the benefit of defendants not plaintiff, thus making the loaned servant doctrine inapplicable. From our examination of the record considerable dispute exists as to the benefit question, so as to render summary judgment in favor of Kehrwald Ocnstruction Company inappropriate. First, the invoice, a delivery order type of bill of lading, entered into evidence as Exhibit No. 1, was signed by Melford...