Summary
In Decker v. Ransome Concrete Machinery Co., 118 N.J.L. 173 (E. A. 1937), defendant had sold a concrete mixer to Franklin Construction Co. under a conditional sales contract.
Summary of this case from Devone v. Newark Tidewater Terminal, Inc.Opinion
Submitted February 12, 1937 —
Decided April 30, 1937.
Appellant was an employe of a construction company, which had purchased from respondent a concrete mixer, and being unfamiliar with the operation thereof, the construction company employed a general employe of the machinery company to operate the mixer on the road work upon which it was engaged, until one of its own employes should become familiar with its operation; and while this employe of the machinery company was operating the machine under the direction of the foreman of the construction company, appellant was injured. Held, that at the time of the accident, the operator of the mixer was pro hac vice a fellow employe of appellant, subject to the direction and control of appellant's employer, and for the time being the relation of master and servant existed between the operator of the mixer and the construction company.
On appeal from a judgment of nonsuit entered in the Supreme Court at the Morris Circuit, after a trial before Circuit Court Judge Lawrence, who delivered the following opinion:
"This suit was brought to trial at the Morris Circuit before the court and a jury. At the conclusion of plaintiff's case, counsel for defendant moved a nonsuit on the ground that no cause of action had been shown. The trial judge indicated that this appeared to be so, but gave counsel for plaintiff an opportunity to submit a statement of the law deemed applicable. That has been done and considered and the conclusion reached is that no cause of action arose as against defendant company in the circumstances disclosed under the evidence submitted by plaintiff. The facts were that plaintiff was in the employ of Franklin Construction Company which had a contract with the state highway department for the building of a part of a highway route and was engaged in the work when plaintiff was injured in the accident giving rise to the suit. The construction company purchased of defendant machinery company a concrete mixer under a conditional sale agreement. The machine was delivered and placed in position at the place where the work was being done for use in carrying it on. While, under the terms of the agreement, the title remained in the machinery company until it was paid for, and it had the right to recover possession in the event of default in any of the stipulated payments, no such default occurred and the legal possession of the machine was in the construction company at the time of the accident. It was being used, therefore, in its own work and the machinery company was not involved in its prosecution. As, however, the construction company had no one in its employ sufficiently familiar with the operation of the mixer, by an arrangement between it and the machinery company, one Williams, in the general employ of the latter, was sent to operate it in the road work until such time as an employe of the construction company could familiarize himself with it. Some allowance appears to have been made to the machinery company by the construction company for the services of Williams, who consented and was acting as the operator at the time the accident occurred. The location and use of the machine at the site of the road work, including notice to Williams when it should be set in motion, were entirely in the control and subject to the direction of the construction company, through its superintendent or foreman. This was the situation at the time of the accident. Plaintiff, Decker, was engaged in emptying bags of cement into a scoop attached to the mixer which, when ready and on a signal to Williams by the foreman of the construction company, would be lifted and dumped into a revolving barrel. In order to properly empty the bags, it appears to have been necessary for Decker to get into the scoop. At the time of the accident, he was standing in it. Without warning to him, it was suddenly raised and then dropped when someone nearby shouted to Williams. In coming down, the scoop struck the ground with force and Decker was injured. He brought the present suit against the defendant machinery company as the general employer of Williams. The latter was not made a party defendant.
"On this state of facts, counsel for the machinery company moved for a nonsuit at the trial on the ground that no negligence could be attributed to it as the general employer of Williams, as he was at the time pro hac vice, a fellow employe of the plaintiff, subject to the direction and control of the construction company in carrying on its road work, and actually engaged therein in such manner as to create, for the time being, the relation of master and servant between them, within the rule followed in such cases as McAndrews v. Burns, 39 N.J.L. 117, and Ewan v. Lippincott, 47 Id. 192; also indicated and recognized in Hardy v. Delaware, Lackawanna and Western Railroad Co., 57 Id. 505; 59 Id. 35. This appears to be so, and in the circumstances it would seem that the general employment of Williams by the defendant was not a controlling factor, for the reason that at the time of the accident he was under the direction and control of the construction company and consequently a fellow servant of plaintiff. In any event, the proofs failed to disclose that he was doing any work for the defendant. The motion for a nonsuit should accordingly be granted. A postea to that effect will be signed."
For the appellants, Hillery Young.
For the respondent, Kellogg Chance.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Circuit Court Judge Lawrence in the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, LLOYD, CASE, BODINE, DONGES, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, COLE, JJ. 14.
For reversal — PARKER, HEHER, JJ. 2.