Viggiano v. William C. Reppenhagen, Inc., A--121

• Decision Date: 01 April 1959
• Docket Number: No. A--121,A--121
• Citation: 150 A.2d 40,55 N.J.Super. 114
• Parties: Frank VIGGIANO, Plaintiff-Appellant, v. WILLIAM C. REPPENHAGEN, INC., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 114

55 N.J.Super. 114

150 A.2d 40

Frank VIGGIANO, Plaintiff-Appellant, v. WILLIAM C. REPPENHAGEN, INC., Defendant-Respondent.

No. A--121.

Superior Court of New Jersey Appellate Division.

Argued March 9, 1959.

Decided April 1, 1959.

James F. McGovern, Jr., Jersey City, argued the cause for plaintiff-appellant.

Francis John Tarrant, Jersey City, argued the cause for defendant-respondent (Beggans & Keale, Jersey City, attorneys; James P. Beggans, Jersey City, of counsel; Robert E. Tarleton, Jersey City, on the brief).

Before Judges CONFORD, FREUND and HANEMAN.

The opinion of the court was delivered by

FREUND, J.A.D.

Plaintiff, Frank Viggiano, is a laborer in the employ of United Engineers and Constructors (hereinafter 'United'), which was construcing an extension at the Jersey City plant of the Public Service Electric and Gas Company. He brought this negligence action to recover for personal injuries sustained on July 28, 1955 when he was struck by a dump truck owned by the sole defendant, William C. Reppenhagen, Inc. ('Reppenhagen'), and leased to United. The negligence alleged was that of Carmine Baratta, the driver of the truck, employed by Reppenhagen and supplied by it to United to operate the truck. At the conclusion of all the testimony bearing upon the issue of liability the Law Division judge granted defendant's motion for judgment on the ground that there was no evidence from which the jury could have found that Baratta was in the employ of, or otherwise subject to the control of, Reppenhagen at the time of the accident. Plaintiff appeals.

The question presented is whether Baratta, while driving the truck at the United job, remained in the employ of the defendant, or whether he temporarily became an employee of United exclusively. For the past 40 years, Reppenhagen has been engaged in the business of renting trucks under an arrangement with United and Public Service for the furnishing of trucks with drivers. The arrangement, testified to by Nicholas C. Reppenhagen, treasurer of the defendant, is as follows:

'Well, we have an order memo from Public Service to furnish trucks when required. If they call up for a truck we send it down with a man, fully maintained. * * * We get paid by the hour. * * * For everything.'

The agreed price covers the wages of the driver, the cost of maintenance, repairs and profit. When a call is made, it is not for a particular driver, but for the type of truck. Reppenhagen selects the driver and tells him where to report for work. The drivers are members of a teamsters union with whom the defendant has a contract; United has no contract with this union. The drivers are paid weekly by the defendant at the defendant's premises. The trucks are garaged in, and the driver starts his day's work from, defendant's garage. With specific reference to Baratta, the driver of the truck which caused plaintiff's injuries, Reppenhagen said that he had the power to hire, lay off and fire him.

On the morning of July 28, 1955, pursuant to an order from Reppenhagen, Baratta drove a snub-nosed dump truck and reported at the office of the general foreman of United, at the Public Service plant. Baratta testified that he had been operating this truck or some other truck at the Public Service plant for 'about a year.' On the occasion in question he was instructed by a foreman of United to transport old lumber from the south to the north yard of the plant. The lumber was loaded on the truck by two employees of United; one of them was the plaintiff. Baratta had nothing to do with the loading or unloading; he just drove the truck. United's other employee, Ralph Raino, testified that Baratta was 'not allowed to touch any of our material.' United's foreman did not tell Baratta what road to use, nor at what speed he should drive the truck.

After the truck was loaded, plaintiff placed himself in the cab on Baratta's right. The distance to the north yard was about half a block, and Raino walked alongside or in front of the truck. As they approached the north yard's narrow gate, plaintiff told Baratta to stop the truck. When he started to alight and was on the running board, the truck lurched or rolled. Plaintiff was thrown to the ground, and his leg was pinned under the wheel. This action was brought to recover for the injuries thus sustained.

The basis for the granting of defendant's motion and for the entry of judgment in its favor was the conclusion by the trial judge that 'the uncontradicted testimony is that at the time of this occurrence the control, which is the ordering not only what shall be done, but how it shall be done was within others (not Reppenhagen).'

Accepting as true all the evidence supporting plaintiff's view and according him the benefit of all inferences to be logically and legitimately drawn therefrom, as we must, Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170, 113 A.2d 13 (1955), we find the determination by the trial judge that Baratta was not, as a matter of law, the servant of the defendant at the time of the accident, but the servant solely of another Pro hac vice, clearly erroneous.

The legal question as to whether a general employer who contracts to furnish equipment and an operator thereof to others remains liable for the negligence of the operator while performing the function contracted for, is one which is not readily answerable on the basis of the existing authorities. The most comprehensive review and analysis of the pertinent cases in our reports are to be found in the concurring opinion of Judge (now Justice) Schettino in Devone v. Newark Tidewater Terminal, Inc., 14 N.J.Super. 401, 406, 82 A.2d 425 (App.Div.1951). No purpose would be served here by repetition of that summary. It is sufficient to note that it is there pointed out that while many, and frequently conflicting tests for liability of the general employer are set forth in the cases, the only one which can be supported, on principle, within the doctrine of Respondeat superior, is that as to whether the workman in doing the act which causes the accident was still furthering the interest of his general employer. (14 N.J.Super., at page 415, 82 A.2d at page 432).

Since an employer is responsible for the tort of his employee acting within the scope of the employment whether or not the employer was controlling the details of the work at the time the tort occurred (e.g., the driver of a delivery truck as an employee of the defendant), there is no reason in logic or policy for abating that liability of the general employer in such a situation as that before us on the basis of whether or not the contracting-borrowing employer was exercising any degree of control or direction of the employee in respect to the execution of the details of the work to be accomplished with the supplied equipment, so long as what was being done with it was within the contemplation of the supplier in renting it to another.

As pointed out by Judge Schettino, the special employer (rentee of the equipment and operator) may make himself Also liable by exercising control in a negligent manner, or make himself Solely liable by directing the employee to do an act beyond the service contracted for. (14 N.J.Super. [150 A.2d 43] at page 415, 82 A.2d at...