Thomas v. Great Western Min. Co.

• Decision Date: 07 July 1931
• Docket Number: 20135.
• Citation: 1 P.2d 165,150 Okla. 212,1931 OK 424
• Parties: THOMAS v. GREAT WESTERN MINING CO.
• Court: Oklahoma Supreme Court

1 P.2d 165

150 Okla. 212, 1931 OK 424

THOMAS v. GREAT WESTERN MINING CO.

No. 20135.

Supreme Court of Oklahoma

July 7, 1931

Syllabus by the Court.

A third person to whom servants of a general master have been temporarily loaned with their consent is, for the time being their master and responsible for a negligent injury to the servant so long as the third person actually exercises supervision and control over the servant.

Appeal from District Court, Pittsburg County; Harve L. Melton Judge.

Action by Uldine Nichols Thomas, as executrix of the estate of A. B Thomas, deceased, for the benefit of herself as widow, and Mary Lavona Thomas, minor child of deceased, against the Great Western Mining Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Counts & Counts and W. H. Moore, all of McAlester, for plaintiff in error.

J. H Gordon and Monk & McSherry, all of McAlester, for defendant in error.

HEFNER J.

This action was filed in this court on February 6, 1929, by Uldine Nichols Thomas, as executrix of the estate of A. B. Thomas, deceased, against Great Western Mining Company, to recover for damages because of the alleged negligence of the mining company causing the death of A. B. Thomas.

The petition alleged that the deceased lost his life in a mine explosion, that the explosion occurred because of the alleged negligence of the owner and manager of the mine, and that defendant is chargeable with such negligence.

The defense was that deceased was not in the employ of defendant at the time of the accident.

A jury was impaneled to try the case, and at the close of the evidence the trial court on motion of defendant directed a verdict in its favor. In our opinion the trial court ruled correctly in so doing. Deceased met his death while engaged in surveying a mine owned, operated, and controlled by the Eastern Coal & Mining Company. Defendant was in no manner interested in the mine, and had no control over it. The evidence discloses that deceased was a general employee of defendant and worked for it until about ten days prior to the accident, and was on its pay roll at that time. The explosion occurred on the 13th day of January, 1926. Deceased was first employed by defendant some time in the latter part of the year 1924 and continued in its employ until he was engaged by the Eastern Coal & Mining Company. The evidence discloses that some time in the latter part of December, 1925, the manager of the Eastern Coal & Mining Company solicited deceased to survey its mine and make maps thereof. He was at that time engaged in surveying defendant's mine, but agreed to make the survey as soon as he had completed the survey of defendant's mine. Deceased was at that time on the regular pay roll of defendant, and it was agreed between it and the coal company that it would lend it deceased's services to survey its mine and bill it for such services. In accordance with this agreement, deceased entered upon this work for the coal company and was engaged therein at the time of the explosion. Defendant paid him for his work from the time he left its employment until his death. It however, had no control over him while working for the coal company, but he was at that time under the complete supervision and direction of the coal company. In these circumstances, notwithstanding he was at that time on the pay roll of defendant and by it lent to the coal company, it could not be held liable for the negligence of that company.

In volume 18 R. C. L. 493, the following rule is announced: "It is well settled that one who is the general servant of another may be loaned or hired by his master to another for some special service so as to become, as to that service, the servant of such third person, the test being whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the person to whom he is loaned or hired."

At page 784 the author further says: "In determining whether, in respect of a particular act, a loaned servant is the servant of his original master or of the person to whom he has been furnished, the general test is whether the act is done in the business of which the person is in control as a proprietor, so that he can at any time stop or continue it and determine the way in which it shall be done, not merely in reference to the result to be reached, but in reference to the method of reaching the result."

In the case of Western Union Telegraph Co. v. Rust, 55 Tex.Civ.App. 359, 120 S.W. 249, the court said: "Where a servant has two masters, a general and a special one,...