Warren McCollum v. Orvil Smith and Chan C. Wilson, Doing Business as S & W Equipment Rentals, a Partnership
339 F.2d 348
9th Cir.
1965
Check Treatment

*2 CHAMBERS,.KOELSCH and’ Before BROWNING, Judges. Circuit KOELSCH, Judge. damages for- this suit to recover personal injuries, court di- district against plaintiff rected a verdict appealed. assignments he has His off validity error rul- all concern the of that ing. on- Plaintiff based his claim negligence. complaint His in two- charged counts. one he the de responsible fendants were doc under the respondeat superior neg trine ligent operation of a their em ployee, Choy; other, Ed and in he- charged exception under an to the fellow- servant rule that were- defendants negligent employing themselves alleged incompetent ope whom was an rator.1 “Although varying- stated

ways times, at a. different deciding- trial court must answer (for whether to direct a verdict the de fendant) in its- ‘whether the evidence rationally entirety support a ver plaintiff, assuming dict jury took, to- as it would be entitled take, a most favora view ” plaintiff.’ Phipps ble to v. N. V. Amerikaansche Nederlandsche Stoom Maats, (9th vart, Cir. 259 F.2d 1958), quoting con Justice Frankfurter curring McCarthy, Wilkerson 93 L.Ed. 497 court, in And this common courts, appellate applies same other duty doctrine, engaged. employer being servant which ex bound The fellow employees empts employer provide for in with safe in negli juries employee by surroundings, a fellow his se strumentalities notoriously gence co-employee, subject of a care lection or retention neg exception if an or is constitutes knows less ligence actionable employer, chargeable part notice of the fact on the injure negligently likely the tort feasor is to be careless should the co-worker performing in which he service fellow workmen. one of eso very operation, reviewing or- delicate be- a district when test weight Roberts-Kennewick, of their but also because cause & der. Sherwood length great Insur- the boom line. & Marine Paul Fire Inc. v. St. 1963). directly And load unless the beneath F.2d 70 ance *3 tip began, of the boom when the lift that disclosed the evidence this case sway it would in a considerable arc when Company (Con Engineering Concrete crete) ground, creating from raised a haz- a subcontract into had entered Choy,being condition. ardous seated be- & of Haas firm the construction with boom, of side the base was himself Haynie and erect to manufacture gauge, any degree to unable with ac- ga four-story parking for a framework curacy, position tip of the boom with rage com The structural Honolulu. reference load. He ponents to consist of the frame were was this and other infor- needed beams, joists prefabricated and concrete by who, mation through one the loaders by type Con a manufactured soffits of pre-ar- 2 use a series They plant. hoisted were crete at its ranged signals given by arm, and hand by place into cranes. means boom, would indicate where to move the McCollum, plaintiff, was Warren The position the location and of the and line charge engineer con- Concrete’s when to make a lift. deciding included struction. His duties done, inspecting how work was to be forty Some of the beams were feet installed, they were the materials before long weighed 6,000 as much as directing blueprints interpreting pounds. lifting, they For were attached workmen Concrete’s sling to a bearing cables, fashioned of two each building top a hook at end When work of the other building commenced, story fastened the boom Con- line. These hooks by capable stirrup- of were had no of its own inserted crete reaching crane workmen a into height; accordingly, loop like to that built into either end beam. large plaintiff P & H set, a mobile prac- rented After the hooks were the usual slightly from Smith Orvil tice was to first raise the beam who, partners, hung as ground. and Chan C. Wilson so that it free of the leasing alignment carried on the business con- If the with reference to the machinery. agree- tip appeared correct, signal struction The rental boom would and, given Choy proceed, ment was oral so far as the evidence be but otherwise shows, simply per that for $70.00 he would be lower the beam supply reposition hour defendants would Concrete the boom. crane, operator, an with oiler. Thursday. The accident occurred on Sunday, On unit for the standing Plaintiff was on the semi-trailer There, job to the site. driven only recently brought a truck that had specified by plaintiff, as it was outfitted forty-foot in a load of He beams. consisting with a of a main sec- boom helping up sig- hook them and together length, tion 170 feet in pre- nalman. After had made some jib long 40 second section feet liminary adjustments, plaintiff boom tes- extended from end of main the far gave Choy tified that he the hand and angle. section at an obtuse The line signal meaning simply “ready arm or lines used to hoist loads ran down test, go ahead”; Choy immediately, tip from the of this latter section. allowing and without first line Monday, crane, On receiving any clearance, cheeked or com- employee defendant’s Edward lift; menced to make the actual that the put building thereupon swung work. materials pendulum, beam like heavy Lifting bulky. striking were plaintiff great them was force and segments composite joists The soffits were the lower beams which the were rested. violently Nepstad Minn. causing knocked him to be ground. A.L.R.2d N.W.2d the trailer 1393, 2.§ evidence, at full taken From this ignored value, appears that it But as the cases make above correctly plaintiff’s interpret failed clear, essential, con is not in order to pre signal, usual none of and took servant, employee a loaned stitute commencing a move cautions before general employer relinquish full con thfe plaintiff. We potentially harmful to special employee, or that trol over his hesitancy holding have completely subservient support must While latter the borrower. negligent. Choy was *4 possess power di of “authoritative However, de as an affirmative and control” rection over the responsibility Anderson, supra fense, 212 denied defendants Oil v. [Standard ground employee’s 222, acts on the that his for at 29 S.Ct. at so 252] their U.S. although em in com their will have force of a that directions “the equipment ploy operating Yazoo, supra, when their v. mand” [Denton authority happened, 142], to be had ceased 52 at the accident S.Ct. this at being and, every time for the extend over incident of servant need not their being was, respect employer-employee relationship, work but performed, performance of Concrete— the servant of over the servant’s short, particular servant. was a loaned is en in he work in which he unequivo positively gaged negligent 'time of act or If the evidence at the Choy’s cally Supreme omission. As the Minnesota establishes course, status, Nepstad of in then the declared v. Court consequences illuminating opin responsible supra, particularly for are not negligent acts, discussing subject, rule is of for the ion this “elementary” that: nothing logically is incon- “[T]here puts person one his servant “When sistent, using test, in when this disposal and control at under the that a worker is the performance aof of for the another of for certain servant latter, particular for the service acts and servant of another servant, respect of in that in his acts examples of acts. other Excellent service, as the is to be dealt with ma- hold a this are the eases which of of latter and not servant operator performings chine work former.” of the another to be the servant & M. Denton Yazoo R. v. V. main- machine owner the care 310 52 L.Ed. S.Ct. 76 machine, of ser- tenance but the appears if it But debatable opera- of vant borrower Concrete, Choy then of the servant question tion of it. The is crucial change question awas whether there employer had con- which jury. was one fact for the masters trol rise to act deciding injury. issue, Re- this a factor this connection usually controlling statement, Agency, is the Comment considered * * a(2), location the ser Since to control always vant, responsibility regarded question as a raised done, specific power. of some act Oil because correlative The Standard Anderson, important Co. v. Chicago, (1909); Mil or not L.Ed. he remains the servant City general employer Ry. as & St. Paul to matters

waukee Co. v. 1925); Tacoma, erally, as to the 7 F.2d 586 but whether or Ball, question, Salvage in the Co. act in Western Marine & App.D.C. 208, of and direction 37 F.2d 1004 business under the performed (Italics sup- control this over those other.’ of one or the unmistakably rested with plied.)” work Concrete. ground for Plaintiff’s second re consideration careful covery substantial likewise lacks eviden light propo in the these record (cid:127)entire tiary support. Specifically, there was the conclusion sitions makes manifest proof at time defendants em Concrete, the servant ployed competent he was is con far of this so outcome case operate reasonably safe n cerned. manner or that he would thereafter negligent; any nor was there opinion, previously As noted slight adduced which would tend in the n defendant’s agreement with Concrete degree then, thereafter, est fore op- complete was to rent prob warn defendants that erating personnel. compensation Their ably employ. be careless their while way depended upon in no how much accomplished, Briefly, appear how little the crane what does is that operator trade; the number hours was was a crane that he operated. They per- years’ experience did not undertake had more ten any vocation, gained form work. What was to be done from continuous *5 employment crane and time that would the the with a number of interna- required tionally be to do companies, it were matters left known construction Concrete, to very decide. rather Concrete and that he was familiar with the interpreted type had and the of P & H mobile crane involved plans building. accident, having sched- the Concrete in this them prior the jobs. uled installation of the build- various on Plaintiff makes much ing components, to day job had them the hauled the fact first the on this job needed, slip site from time to time as and allowed to and start to a settle regularly Choy precise- Concrete holding, directed soffit had hoisted and was ly awaiting where to set them. instructions, The work further and that n cranewas following day Choy swung was eontinu- on the a beam n allyrequired building striking to from and take orders above the almost a 'closely given by standing follow the workman who directions on inner through plaintiff, portion Concrete who was in of the frame. Plaintiff mention- charge during example, Choy’s For ed both matters to one su- progress work, plaintiff periors. However, plaintiff’s caused own ver- 'Choy to drive the mobile unit to sion of these incidents makes clear ¡several adjoining structure, fairly locations neither could incident at- comport plaintiff’s Choy’s duty. to order tributed build- to dereliction of ing specified partic- schedule. He which conclusion, fully In we are satisfied ular beam or soffit should be at a hoisted judge correctly appraised trial given time, ruling the right. evidence that his place required to where it but him to adjustments position make nice its judgment is affirmed. andhold it in place being while it was incorporated short, into frame. BROWNING, Judge (dissent- appears it nowhere that Concrete en- ing). gaged perform defendants to a certain quoting points As the Court out job, but Concrete rented de- Nepstad ques- “[t]he crucial operator fendants’ machine in order right tion is which had the to do some work of their own and in particular to control the act rise fashion; right injury.”1 (Emphasis own their added.) the crucial If always (Second), Agency 1. Restatement “Since the specific (195S) done, comment a raised because of some act jury proper jury. from which there take case from the rationally ruling could the ma- conclude that on a motion to direct ver right chinery-leasing dict, give company had must full credence Choy’s performance testimony party of that control favorable to the act, opposing Galloway it was a verdict error direct the motion. v. United machinery-leasing States, company’s favor. 63 S.Ct. 87 L.Ed. 1458 Hirsch v. arise, Appellant’s injury did not Archer-Daniels-Midland 288 F.2d assume, the court from an act seems 1961). Only jury could relating when, where, what weigh appellant’s testimony, judge his purpose employed. the crane was credibility, and draw the ultimate con Rather, injury resulted from act clusion as to crucial facts to which he relating operation the mechanical testified. Tennant v. Peoria & Pekin Union in which crane —the manner the Ry ., accomplished crane and its crew 88 L.Ed. 520 alignment lifting mat- beams —a quite independent Moreover, appellant’s testimony ter of whether employed supported by crane and crew its should be other evidence. moving beam to certain general employ was in the position the structure at time. machinery-leasing company which Thus, precise question in this case paid him, assigned job, him to the machinery-leasing discipline had the sole dis- company controlled the work the crane miss him. All of these are factors “use- do, was to but whether there evi- * * * determining ful whose is dence which ration- could of control.” Standard Oil Co. ally *6 machinery-leasing conclude the Anderson, v. 29 S.Ct. company, rather than the construction 252, (1909). company, right Choy had the to direct as to in the manner which the crane Choy was crew of three em- operated aligning lifting was the ployees machinery-leasing com- beams. pany accompanied who crane and the operated Appellant it. that an- testified There was written contract (Cabral) crane, other of appellant, the three was the rental of the supervisor agreement eral of the crane and its crew. entered into oral on be Choy company himself testified that was half of Cabral construction represented authority the “senior man” and who would have exercised the general machinery-leasing company’s Choy to control manner in which manager appellant conferred, When the crane had it been operating directly was unequivocally felt crane testified authority.2 contrary careless manner he his com- he had no such plaint machinery- rejecting and to Cabral could made leasing manager. company’s testimony. This made it im alone crane, important “A Not how was to use authority no. I had no don’t not he as to —I remains the servant of the pretend operator. generally, be a crane It matters but ques- crane. his business as to how he runs whether or as to the act tion, of and he is the business Well, your authority “Q what was under the direction of one or other.” doing? respect to what added.) (Emphasis Well, “A I could tell him beam what pick- pages pick up, 2. At : or I can indicate which 152-153 the record you up, (By Padgett) go, Mr. have and where it was to that was “Q Did my authority authority Choy? hire and to tell fire about extent No, him I I “A what to do. could tell him sir. what you authority up to “Q Did have to direct wanted done. How it was done was operation? him in him.” the manner of his costly complex Thus, crane The there was substantial evidence piece equipment; responsibility operating it was reasonable suppose machinery-leasing proper a safe and manner re- company employees maintain control Over mained with the crane crew as physical operation equipment machinery-leasing company. the through of such And employees, by granting it its own follows that a directed temporary relinquish deprived appel- renter.3 verdict the district court upon lant of his to a trial dependent fact The disputed issue of fact. signals operating from others in employees of and that the crane company appel (including construction

lant) assisted the crane crew sometimes giving signals, does estab operating lish that under control of construction America,

company. UNITED Supreme STATES Court has twice Appellee, Plaintiff giving signals held that in such example at most an circumstances “is necessary cooperation Floyd of the minimum HARMON, Defendant-Appellant. B. undertaking carry out a coordinated No. 15724. * ** cannot amount to control Appeals United Court of States supervision.” Shenker v. Baltimore Sixth Circuit R., 6, 1667, 1, & O. R. 83 S.Ct. Dec. 1964. L.Ed.2d 709 As Denied March Certiorari 1965. Court said in Standard Oil Co. v. Ander See 85 S.Ct. son, (1909), giving signals un “The der the of this circumstances case orders, not the of informa tion; signals and the obedience those *7 co-operation showed subor dination, enough and is not show change has there been of masters.” R., also Denton See v. Yazoo & M. R.Y. 305, 310-311, any event, it would sig to determine whether the represented cooperation, nals mere

had the “force of a command.” (Second) Agency general Restatement expect as the servant would his (1958), comment employer desire, original c serv- general employ- “A Upon question, continuance of the ice continues. operation ment is general employer also indicated fact is general employer renting machine where the business machines and men op- relevant, rents the machine and a servant since such a case there is more it, particularly likely erate if the instrument to be an intent to retain control Normally, instrumentality. person considerable value. over the employer expects eral who, gratu- is not such business and protect itously interests the use of the in- as a matter not within strumentality, may opposed enterprise, permits and these business temporary instrumentality the interests em- assist his servant ployer. expected only If another, apt the servant is more intend to sur- give temporary results called for render control.” instrumentality and to use the