*1 Priority Transport Air actually knew in Alaska. using its Turboliner Don May 1969that as well in knew Jonz possession of this Turbo- taking
would be operate it in continue
liner and would knowledge, that this
Alaska.15 believe contact coupled additional
when with the state, injury in this the occurrence minimum contacts to establish sufficient Alaska.16 superior order of the re- and
versed this case is remanded further
proceedings opinion. with this consistent RABINOWITZ, JJ.,
DIMOND and
participating.
Charles M. READER, Appellant,
GHEMM CO., Inc., Appellee.
No. 1232.
Supreme Court of Alaska.
Nov. Priority May twenty years April Air tured some before the ac- way Ham- Transport cident in the Turboliner would find its sent into plant the forum for relicens- state. The court Aircraft’s Tucson stated: ilton inspection. purchase Eyerly’s Prior- The carnivals which an annual and for frequently ity to re- rides Aircraft Hamilton have fixed and loci and paint are often colors fun and thrill the aircraft dis- pensing Airways, insignia nomads which Pan Alaska itinerate place. operated company Don Given the owned multistate products requested that Jonz, kinetics of its himself its Jonz en- gagement radio trade, additional install world-wide Aircraft we Hamilton as- sert, overtones, equipment without in the aircraft. chauvinistic Eyerly expect Aircraft should Enterprises, the stream of Service interstate v. Atlas commerce 16. Jones bring products (9th its Cir. Corp., to Texas. F.2d 414 F.2d Bodies, 1971) ; Duple at 597. Ltd. v. Hol Motor (9th certainly lingsworth, The same Cir. F.2d said for air- planes. 1969). *2 Nome, Kennedy, C. R. appellant. for Wade, Hugh Anchorage, appel- G. lee. DIMOND, BONEY,
Before J.,C. WITZ, ERWIN, RABINO CONNOR and JJ- OPINION BONEY, Chief Justice. Reader, below, ap-
Charles defendant, peals from a Company, (hereinafter refer- red to as Ghemm). on a general
Ghemm was contractor Nome, garage site near Alas- construction Edman, partner, ka. and his Reader Axel had haul to the gravel subcontracted to July site. On Reader was supervise dumping of at the site to trucks, gravel one of which two of grav- was driven Vernon Carlson. el into being dumped the excava- Ghemm, tion where an Daniel Walsh, spreading it around front-end loader. dump ques- truck in gate
The tail hinges, one tion was held in two the tail top edge on each side of pin which gate. consisted of a hinge Each passed through rings on truck gate. raised the bed tail As Carlson noticed gravel, dump truck to Reader slipped right hinge had pin out, sagging the left gate leaving the drive Carlson to hinge. Reader As edge of excavation. away from the forward, ring on the truck moved caught un- gate tail top right corner end der the side of back bed of the truck. disagree- parties are in substantial the next happened during
ment as to what that when testified few Reader moments. up in front-end he saw drive Walsh loader, away. then Reader him he waved to free and tried turned the truck tail just had freed gate by He hand. load- the front-end gate bucket of when the impact pushed gate. hit er truck, objection, lifting the Over Reader’s gate tail back in its hand advised the of this defense In- catching Reader’s truck struction gate and bed 28: the tail between to low- screamed Walsh truck. the time of ac- find that at bucket, continued the loader er the performing cident Dan *3 near- right thumb His lift a short time. for Reader, special service for Charles to hospital to the severed, drove ly Reader and permission Company, Ghemm be treated. acting completely was under the direc- the tail tion and control of Mr. Charles Reader he saw that when testified
Walsh parked against Com- hinge cannot find Ghemm from one gate hanging pany to find that Mr. Walsh walked over even if and loader front-end bring negligent. Readej; to was Walsh asked Reader. gate. tail lift up and to the loader You are further that apparently stood agreed. Walsh Reader defense, is an affirmative defense tail hand on the right with his truck pre- a it has not been established his left signals gate giving to Walsh evidence, your ponderance find- toward the loader Walsh advanced hand. be in Plaintiff’s favor on that must in accordance the truck the back end issue. end of signals. The front with those answering special questions pro- canopy blocked bars loader and some them, pounded concluded that neither he could see that Walsh’s vision so special performing was a for Walsh service hand. right Reader’s gate the tail nor direction and con- Reader under Reader’s bucket to roll the signaled Reader Walsh duties trol and outside Walsh’s order to upit a and to lift little as an This conclu- Ghemm. sud- gate. Reader sagging teeth under the case being dispositive sion under caught his hand denly that was screamed instructions, jury returned trial court’s Walsh the bucket. lower and for toWalsh for for Reader moved verdict Ghemm. immediately and backed bucket lowered the error in Instruction alleging new away the truck.
the loader special questions submitted doc- jury concerning loaned servant alleging against Ghemm suit Reader filed denied this motion. trine. The trial court negligence that he an- employee. In its Walsh, Ghemm’s law not questions of These facts that swer, the defense Ghemm raised yet jurisdiction. in this resolved for special service performing Walsh the trial argues servant. Reader that Reader’s Reader and was thus insuf that evidence was defense is erred that the of this The essence on the liable under instruction support it not be ficient to an can asserts the in for ac- and that superior Reader doctrine loaned servant respondeat confusing incorr loaned ser- given struction tions of since Walsh servant. was Reader’s vant doctrine ect.1 given: Reader has the law. we have stated cause work for [number] [W]e law we think it does object objected urge employer that even adequately [number] error believe, for earlier in permits to the instruction [number] instruction in the instruction. one reserves the where his servant chambers, preserved correctly example, two as employer [28] state long be- his as as His ed instruction clude Reader also request the loaned servant doctrine. ultimate sponsible servant. ant control, employer his a correct instruction does raising proposed we feel that his failure was no better [number] in terms all that the issue control an instruction one over His required remains re- than the the serv- oí request- concept appeal. pre-
The loaned servant doctrine escape liability, has original master must stated as follows: resign full control of the servant for the being, it not being sufficient that
A permitted by servant directed or the servant partially under the control perform master to services another person; of a third and it is necessary to may become servant other in of such distinguish between authoritative direc performing the services. He be tion and control and suggestions mere come other’s servant as to some acts to details or the necessary co-operation and not toas others.2 work furnished liability is predicated upon Since to be ”6 operation’ larger acts, some particular act or the decisive Such a distinction is inherent the loan- question is whether or servant *4 ed servant doctrine: in order be a to been loaned as to particular those acts.3 servant, loaned one must become the ser- to applied test if a servant determine vant the borrowing of Thus the master. by has been loaned his master another factors which determine or whether not control,4 is frequently stated to be one of person a is a servant must be considered.7 or the of transfer control.5 The control Section of 220(2) (Sec- the Restatement borrowing acquire which the master must ond) Agency of following lists the for the servant to become is not loaned among those factors: merely specific over control the servant’s acts, but rather control in a sense. broader which, (a) by the extent of control Appeals Court of California has dis- agreement, the master exercise cussed distinction as follows: work; over the of details employed whether (b) or not the The existence of the control occupation is engaged in a distinct or
over
is the
test of
critical
business;
liability
for his acts.
is the
exercise
rather
than the mere
control
occupation,
the kind
with ref-
(c)
n
fact of its
is decisive.
exercise which
whether,
locality,
erence
in the
Studios, Inc.,
Peters
98 Cal.
v. United
usually
work is
done under
direction
373,
[Billig
App.
P.
(1929).
277
156
employer
specialist with-
of the
or
a
Co.,
477,
v. Southern Pacific
189
209
Cal.
supervision;
out
power
P.
it is said
(1922)],
241
that the
particular
required
the skill
(d)
em
special
control does
exist
a
occupation;
ployer-
no
in a situation where
or
whether
(e)
voice in the selection or
of the
retention
instrumentalities,
supplies the
workman
negligent employee. And in
reference
tools,
per-
and the
for the
work
general employer,
the court
[Moss
work;
doing the
son
610,
Co.,
Publishing
v.
201
Chronicle
Cal.
quoted
C.J.,
258 P.
for which
(1927)],
length
88
from 39
of time
(f) the
1275,
page
‘“To
following passage:
person
employed;
comply
51(a),
Wigart,
Sons,
order
Rule
Alaska
A.
431
Robinson
v.
327,
(Tex.1968).
Rules of Civil Procedure. Reader’s oral
330
S.W.2d
put
sufficient
the court
g.,
Sons, Inc. v. Wi
4. E.
J. A. Robinson
opposing
counsel on
notice as to
(Tex.
gart,
327,
431 S.W.2d
330-331
Pepsi
given.
defect of the instruction
Cf.
1388,
Annot.,
1968) ;
1394
17 A.L.R.2d
Bottling
Superior
Cola
Co. v.
Burner
(1951).
Co.,
(Alaska 1967).
Service
P.2d
427
833
Seavey,
(1964).
Agency
5.
Law of
86§
W.
(Second)
Agency
2. 1
Restatement
§
Cal.App.2d
Harris,
6. Lowell
(1957).
(em-
(Cal.App.1937)
phasis added).
Id.,
ap-
3.
comment
Cited with
proval,
Nepstad
Lambert,
235 Minn.
;
(1951)
50 N.W.2d
621-622
J.
c
comment
satisfy the
putative
servant must
payment,.
whether
(g)
method of
becoming a
servant of
requirements
job;
time or
loaned
borrowing master
order
or not the work
(h) whether
apply. The instruction
servant doctrine to
employer;
regular
business
provide
with those
jury
should then
parties
believe
(i) whether
Sim-
should be considered.13
factors which
they
creating
relation
roaster
is one of
that the test
ply to tell
servant;
amplifying
“direction and control” without
(j)
principal
or is
differentiating
without
on those terms and
in business.
details of
the mechanical
between control of
specifics of
over
details or
Control
required
and the
control
task
overall
factors
the work is but one of the
relationship,
particularly
master-servant
considered,
sense
in the broader
but control
where, by
nature
here
erroneous
very
the master-servant
at the
heart of
upon
task,
entirely dependent
relationship.8
vision was
directions. Walsh’s
Reader for
end of the loader
by the front
obstructed
dealing
The cases
the loaned servant
nothing
canopy
could
and the
bars—he
con-
problem
confusing
in their lack of
er-
signals.
hand
but follow Reader’s
stated,
sistency.
“not
aptly
As has been
nature is not
lies in that control of this
ror
*5
only
holdings
are the
different
between
issue,
only one
dispositive
but rather
of the
irreconcilable,
jurisdictions inconsistent and
properly to
considered.
of the factors
be
any
jurisdiction
holdings
but the
within
9
charge.”
judgment
Accordingly,
are vulnerable to the same
we reverse
Jus-
problem
tice
noted that
“is
Cardozo
for a new trial.
and remand
beset with distinctions so delicate that chaos
of
two further contentions
Reader raises
is the consequence.”10 This confusion
in order to
which should be discussed
error
partly
arises
the existence
because
of
clarify the issues
remand.
relationship
question
master-servant
is a
error for
argues that it was
jury.11
of fact for the
counsel for
court to allow
Ghemm
closing argument on
in his
to comment
agree
We
with the rule that where
to call Carlson
Edman
Reader’s failure
dispute
the facts are in
argued
as witnesses. Counsel
a servant has been loaned must be deter
as follows:
by
appropriate
mined
ins
jury under
tructions.12
a few of the
going
Here the facts were
dis
I’m
to mention
pute, and the
properly
things
matter
went before
that I’d like
consider.
jury.
But
that evidence
Judge
feel that the instruction
will instruct
we
given on
estimated
the loaned servant doctrine was so
not to be estimated or
to be
weight,
inadequate
require reversing
only by
that
judg
its intrinsic
worth,
remanding
also accord-
ment and
for a new trial. Un
means
its real
instruction,
power
jury
only
der the
to the evidence
could
which
other
produce
have
the more limited form
and of the
considered
of one side to
contradict,
if weaker
proper
A
state
and therefore
control.
should
220(1).
8.
Co.,
§
Id.,
69 Wash.
Rae Brothers Construction
;
(1966)
285,
253,
Davis
418 P.2d
255
2d
Smith, Scope
Bor-
9.
of the Business:
Early
Co.,
Wash.2d
Construction
63
v.
38 Mich.L.Rev.
rowed Servant Problem.
(1963).
(1940).
1222, 1228
220(2)
Ministry
Justice,
Cardozo,
§
13. The
factors
listed
A
(Second)
Agency
(1921).
Restatement
Harv.L.Rev.
provide
Those
factors which
a start.
Annot.,
17 A.L.R.2d
bearing on the case could
would have no
might
deleted;
12. 1
rele
be
others which
be
(1957) ; Nyman
comment Mac
be added.
vant could
satisfactory
people
evidence is within
who
injured
accidents,
and less
in car
people
viewed
party,
be
who are
many ways
evidence
* *
that mean?
*.
everyone,
mistrust. What
So not
everyone
to this
if someone comes
hurt
That means that
who’s
money.
entitled to
It would
money they
a lot
they
court and asks for
be
nice
were because Lord knows
evidence,
duty
produce
the best
have
it’s
sad thing
person
when a
is hurt.
possible evidence that’s available.
the best
unfortunately,
But
the law doesn’t work
yourselves
Now
should ask
way.
just
that
give
money
doesn’t
Edman?
hurt,
Vern Carlson
Axel
people
getting
they’re
unless
fault,
hurt
someone else’s
Reader’s
overruled
they
reasonably
were
careful themselves.
hold that the trial court did
court. We
agree
objection.
in overruling
err
that
We
concluded
have
that this was a reason-
Corp.
Tex-Jersey
the court in
Oil
able
of illustrating
means
an
to Alaska
that,
Beck
legal system plaintiffs
our
are to
compensated
for injuries only upon a
good purpose would be served
[n]o
finding
of fault on
defendants.
reviewing
great
improper
multitude of
argument
in the law
cases which abounds
reversed
the case
very early
books.
date it
Since
remanded for a new trial.
argu-
held that counsel
comment in
opposite party
ment on the
failure
ERWIN,
(dissenting).
Justice
employed by
call a
witness
him.
right to
con-
such comment has not been
portion
I dissent
the ma-
unavailability
ditioned on
wit-
jority
opinion which
holds
case
party
ness to the
so
or on
commenting,
must be reversed for an error
instruc-
witness at the
*6
any
tions.
such error
believe that
I
trial,
through appellant’s
prop-
waived
failure to
[citations omitted.]14
erly present
objections
his
to the trial court
Second,
argues
that the trial
51(a).
as required
Civil Rule
overruling
court erred in
objection
his
prejudicial
certain
allegedly
statements
In this case the
servant doc-
borrowed
made
closing
counsel
in his
appellee’s
trine was raised in
answer and
argument. The
objected
statements
to were
pre-
trial. The
primary
was his
defense at
as follows:
trial
May
order of
ordered that all
you
All of
people
know
presented
who
been
requested
have
instructions be
at the
hurt
have
received
All
money.
trial,
appellant pre-
beginning
yet
[but]
people
know of
who
out
legal
were hurt
no
suggested
sented
instructions
ice,
on the
injured much
seriously
more
on
definition of a borrowed
memoranda
* * *. People
injured
only
who are
single
out on
presented
He
re-
servant.
ice,
who
People
received nothing.
did not
quested instruction which
even
who
accidents,
in hunting
servant.1
mention
doctrine of borrowed
162, 167,
157 Tex.
305 S.W.2d
of his
(Tex.1957). Annot.,
A.L.R.2d
accident occurred.
vant LEE, minor, by Llewellyn Elizabeth proper statement friend, it not a New- ground that was her next Sallie mother, Lee, natural man objection However, general such the law. noninformative particularly Johnson, instruct on the upon to of Alaska Frank judge who is called STATE Trooper, Appellees. State require- meet the simply law. No. 1395. provides ments of Civil Rule which 51(a) part: Supreme Court of Alaska. giving error the party assign No Nov. un- give failure an instruction or the objects before the he thereto less verdict, dis- stating
retires to consider its objects
tinctly the matter to which objection, (emphasis grounds of his
added) require construed this section
We have objection before
specific in criminal cases
claimed error in the instructions will be appeal.2
considered on There no com requirement
pelling reason to relax this litigation greater
civil there even
opportunities to before refine issues
trial. procedure
For Rule function 51(a)
properly, a substantial burden im- must be
posed specific objec- counsel to Otherwise, judge
tions. the trial will adequately
unable to review the argument
and consider made in formu-
lating jury instructions. *7 provisions
Under Second Re- of Agency,3
statement plain such error as should lead
this court’s in the absence of a intervention would,
proper at trial. there- I
fore, affirm below. you agent employee) if (or But that Dan find of the defendant and negligent, scope and that his within the and if proximate injury you plaintiff’s cause of will have found favor on (and support the evidence the other issues mentioned in this instruc- contributory negligence) you
the defense of tion verdict [sic] then must be for plaintiff. then must decide the time acting of the accident Dan Walsh was Pope State, 805-806 scope employment. within the of his (Alaska 1970), reh. denied 480 P.2d find either that Dan Walsh was (Alaska 1971). also, See Bakken agent (or employee) not then the State, Op. at 125 No. P.2d defendant, or, agent (or employee), if the dissenting). 1971) (Erwin, J., (Alaska, acting that he was not within the your employment, of his then verdict defendant; must be in favor of the acting find that Dan Walsh was