Towner v. Hosea O. Weaver & Sons

• Decision Date: 05 March 1993
• Citation: 614 So.2d 1020
• Parties: Louise Gordon TOWNER, et al. v. HOSEA O. WEAVER & SONS, et al. 1910860.
• Court: Alabama Supreme Court

Page 1020

614 So.2d 1020

Louise Gordon TOWNER, et al. v. HOSEA O. WEAVER & SONS, et al.

1910860.

Supreme Court of Alabama.

March 5, 1993.

Michael A. Figures and Gregory L. Harris of Figures, Jackson and Harris, Mobile, for appellants.

Philip H. Partridge and Craig W. Goolsby of Brown, Hudgens, P.C., Mobile, for appellees.

MADDOX, Justice.

The plaintiffs appeal from a judgment entered on a jury verdict for the defendant in a wrongful death case that arose out of a death that occurred at a construction site when a trench caved in on a worker. Two issues are presented: (1) whether the trial court reversibly erred in refusing the plaintiffs' proposed instructions regarding the reserved right-of-control test for determining a person's status as an employee or independent contractor; and (2) whether the trial court misstated the law in its instructions to the jury regarding the "loaned servant" doctrine. We hold that the trial court's instruction to the jury on the law relating to independent contractors was incomplete; therefore, the trial court erred in refusing to instruct the jury as requested by the plaintiffs.

The deceased worker was an employee of Brasfield & Gorrie General Contractors, Inc. ("B & G"). Because the question of whether the defendant Hosea O. Weaver & Sons ("Weaver") was an independent contractor or whether B & G had reserved the right to control the manner in which the work was done was one of the most critical facts for the jury to determine, we set out, rather extensively, the facts surrounding the accident that caused the death.

The Mobile Water Service System, Inc., entered into a contract with B & G to construct a water filtration plant. The project had been essentially completed when a leak was discovered in a large 48-inch water main, buried approximately 18 to 20 feet below the surface. The original excavation for the pipe had been performed by B & G. Freddie Towner, an employee of B & G, was called on May 18, 1990, to come in and work at the plant during the weekend while his supervisor, Anthony Jones, was at home. Towner, noticing that the water had begun to reach the surface of the ground, notified Jones of this fact. Jones decided that the pipe would have to be reexcavated and repaired. Because B & G had moved its equipment to another job site, Jones, B & G's mechanical supervisor, asked Weaver to provide equipment and an operator to excavate the pipe.

On May 21, Weaver delivered a John Deere 692D track-backhoe to the work site. Ladon Hilliard, one of Weaver's regular employees, reported to the site on May 22 to dig up the pipe. Hilliard excavated the pipe, and Towner and another employee of B & G entered the trench to repair the leak. A wall of dirt collapsed, killing Towner.

Louise Gordon Towner, Towner's surviving spouse, and Julius Towner, Towner's minor son, acting through Louise Gordon Towner, filed this wrongful death action against Weaver, B & G, and Jones. The claim against Towner's employer, B & G, was later dismissed.

The jury returned a verdict for Weaver, but was deadlocked regarding whether Jones was liable. The trial court denied the plaintiffs' motion for a new trial against Weaver, but entered a judgment for Weaver and made it final pursuant to Rule 54(b), Ala.R.Civ.P. The plaintiffs appeal.

I.

The plaintiffs' theory is that Hilliard was working in his regular capacity as an employee of Weaver at the time of Towner's death, and that Weaver was an independent contractor. Weaver contends that Hilliard was working under the control of B & G and was a loaned servant at the time of Towner's death. If Hilliard was a loaned servant from Weaver to B & G, then Hilliard would be Towner's co-employee, and the plaintiffs' action would be barred by the exclusivity provisions of the Workers' Compensation Act, Ala.Code 1975, § 25-5-1 et seq. See Gunnels v. Glenn Machine Works, Inc., 547 So.2d 448, 449 (Ala.1989).

The trial court refused the plaintiffs' proposed instruction stating the test for determining whether Hilliard, the backhoe operator, was an employee of B & G or was an independent contractor at the time of Towner's death. It also refused Weaver's proposed instruction regarding the loaned servant doctrine but nevertheless incorporated the instruction into its oral charge.

The plaintiffs' proposed instruction 1, which the trial court refused, stated:

"The test for determining whether one is an independent contractor or is an employee of another is whether the alleged employer has reserved the right to control the means and agencies by which the work is done, not whether the alleged employer has actually exercised such control.

"In other words, in order for you to determine whether Ladon Hilliard was the employee of Hosea O. Weaver and Sons on the day of the accident or whether he was the employee of Brasfield & Gorrie on the day of the accident, you must determine which employer reserved the right to control the means and agencies by which Ladon Hilliard dug the trench but not whether Brasfield & Gorrie or Hosea O. Weaver and Sons actually exercised that control."

C.R. 194. Citing Danford v. Arnold, 582 So.2d 545 (Ala.1991), as authority for the proposed...