Opinion
December 2, 1952 —
January 6, 1953.
APPEAL from a judgment of the circuit court for Chippewa county: CLARENCE E. RINEHARD, Circuit Judge. Affirmed.
For the appellant there were briefs by Stafford Stafford of Chippewa Falls, and oral argument by Harold E. Stafford.
For the respondent S. M. Grengs there was a brief by Bendinger, Hayes Kluwin Milwaukee, attorneys, and Darrell O. Hibbard of Eau Claire of counsel, and oral argument by Mr. John A. Kluwin and Mr. Hibbard.
Frank L. Morrow of Eau Claire, for the respondents Theodore Karatz, Ted Balnyck, and Samuel P. Halpern.
Action commenced April 4, 1951, by Spencer Rogers against Valley Outdoor Theater Company, a partnership consisting of Theodore Karatz, Ted Balnyck, Samuel P. Halpern, and S. M. Grengs, for damages for personal injuries. Judgment was entered January 4, 1952, in favor of defendants, dismissing the plaintiff's complaint.
The plaintiff was injured when he fell from a scaffold on which he was working. The scaffold, or platform, was held in balance by a rope operated by one Kenneth Hipp under the direction of Service Decorators, the partnership of which plaintiff was a member. The partnership had entered into a contract with the Valley Outdoor Theater Company to perform certain services in connection with the painting of a screen.
To meet the requirements of operation in the lifting and keeping in balance the scaffold, it was necessary to have an additional helper and a motor vehicle to be used as an anchor. The Service Decorators borrowed one of the employees of the Valley Outdoor Theater Company. The screen was upon the face of a large outdoor structure 63 feet high and 56 1/4 feet wide. The Service Decorators used a swing scaffold to reach the upper portions of the screen, but it was discovered that there would be trouble resulting when the scaffold was suspended from the top of the structure, because it was too far away from the screen to permit painting, the shape of the structure being concave. The plan was devised to put large iron hooks on top of the structure, but this plan was abandoned, and another adopted which enabled the scaffold to be brought close to the screen. But it was found that the floor of the scaffold upon which the painters stood would not be level, and that the slant of the scaffold upon which the painters stood would be such as to be not practical. It was arranged to fasten a rope to the outside of an outrigger and extend it up over the top of the structure and thence down to an automobile on the other side of the structure so that when the scaffold was placed near the screen the automobile could be driven ahead or away from the structure and thus raise the outer edge of the scaffold to the desired height to level the floor. William Shears, an employee of Service Decorators, was stationed on a fence south of the structure to give signals to which Hipp, the operator of the automobile, would respond. Shears obtained signals from Mr. Phend, a partner of Service Decorators, who was in charge of a truck stationed in front of the screen to which truck a rope was attached which lowered and raised the scaffold. The truck in front of the screen and the automobile in back of the screen worked in unison, one lowering or raising the scaffold while the other brought the floor of the scaffold to a level position. The plaintiff Rogers with Sven Hagman, another employee of Service Decorators, was on the scaffold doing the painting. All engaged in the operation were paid employees of Service Decorators with the exception of Hipp, the operator of the automobile behind the screen.
The controlling question presented is: Was Service Decorators or Valley Outdoor Theater Company responsible for the negligent act of Hipp? The jury was asked in a special verdict to answer the following question:
"Question 8. Was Kenneth Hipp, in pulling the rope with his automobile the agent of Valley Outdoor Theater Company?" The jury answered this question "Yes." The court changed this answer from "Yes" to "No" and in directing judgment dismissing the plaintiff's complaint said:
"The jury found the employee Kenneth Hipp negligent and the plaintiff free from negligence. These findings are sustained by the evidence, but the evidence presented does not sustain the finding that Kenneth Hipp in pulling the rope was the agent of the defendants. The test is not as to who employed him but whose servant he was at the time, and this is determined by the direction and control to which he was subject in rendering the particular service, 35 Am. Jur. 970. Such direction and control being in the plaintiff and his partner William A. Phend, operating as Service Decorators, the answer to Question 8 must be changed from `Yes' to `No.'
"In this case, the same question was raised at the close of the testimony by motions of the defendants for a directed verdict in their favor. Such motions could well have been granted, but they were denied with the suggestion that the question could again arise on motions after verdict. That has occurred, and the motions which the defendants now make to change the answer and for judgment dismissing the complaint on its merits must be granted."
From the judgment accordingly entered plaintiff appeals.
The doctrine of loaned employee recognized in this state, where the loaned employee works with the borrowing, or temporary, employer's men has been frequently pointed out. Cayll v. Waukesha G. E. Co. (1920), 172 Wis. 554, 179 N.W. 771; Visiting Nurse Asso. v. Industrial Comm. (1928), 195 Wis. 159, 217 N.W. 646; Spodick v. Nash Motors Co. (1931), 203 Wis. 211, 232 N.W. 870. When the evidence shows who has the power of control and whose is the work, the relationship of master and servant is established. In the Spodick Case, supra, we followed the holding in Standard Oil Co. v. Anderson (1909), 212 U.S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480, and held that (p. 214):
"In many of the cases the power of substitution or discharge, the payment of wages, and other circumstances bearing upon the relation are dwelt upon. They, however, are not the ultimate facts, but only those more or less useful in determining whose is the work and whose is the power of control."
A distinction of facts exists between those in the cases relied upon by appellant and those in the case at bar. We do not deem it necessary, in view of the authorities controlling cases of this character to review all of the citations of the appellant. However, in Bertino v. Marion Steam Shovel Co. (8th Cir. 1933), 64 F.2d 409, and cases cited there, on which reliance is placed by appellant, the principles of law set forth, so far as they may be applicable to the facts now before us, support the ruling made by the trial court in directing a dismissal of plaintiff's (appellant here) complaint in the case at bar. It is stated in the Bertino Case (p. 412), quoting from Yelloway v. Hawkins (8th Cir. 1930), 38 F.2d 731, that "The test is whether the servant is engaged in the work of the new master, who has particular `power to direct and control the manner of performing the very work in which the carelessness occurred.'"
Hipp's relation to the appellant must be determined by the facts disclosed in this record. The occasion for Hipp's becoming a helper and agent for Service Decorators arose from the following circumstances:
The Service Decorators, carrying on a general decorating and painting business, entered into the following contract with Valley Outdoor Theater Company:
"Service Decorators agree to paint the tower two coats of white and one coat of black and to furnish all necessary equipment and labor. Valley Outdoor Theater owners of tower located on Highway 53 between Eau Claire and Chippewa Falls, agree to furnish all paint and thinners only.
"The area to be painted consists of white 36' x 48' starting one foot from top, plus a top border of black 1 foot in depth and width of tower and a two-foot border across bottom as well as a four-foot border of black on each side of white panel.
"All of the above for and in consideration of $197 to be paid upon completion of job."
Service Decorators moved their equipment to the premises of the Outdoor Theater Company on April 9th. The next day when they began to organize for the operation, certain difficulties were encountered in the way of reaching the surface of the screen to be painted. In order to overcome the difficulties, they provided certain equipment including a scaffold, pulleys, and ropes. Finally, on April 13th, an effective method was put into operation for reaching the screen to be painted. A rope attached to a truck owned and operated by a partner of appellant raised and lowered the scaffold, but in order to hold the floor of the scaffold level another rope was attached to an outrigger, extended over the top of the screen, and operated from behind the screen. It was in order to operate the rope that balanced the floor of the scaffold that Service Decorators sought outside help, and it was in this operation that during the early part of the day a jeep was used and operated by one Foley. At 4:30, the usual quitting time, Foley prepared to leave and take the jeep with him, thus making it necessary for Service Decorators to substitute a car in place of the jeep and another individual in the place of Foley. It was under these circumstances that Hipp, generally employed by Valley Outdoor Theater Company, was induced to remain on the premises after the other employees of the Theater Company had left and to use his car in carrying out the work of Service Decorators.
That the work was the work of Service Decorators and done for their benefit is clear from all of the facts of the case. It was because of the need on the part of Service Decorators for additional assistance that Hipp consented to act and use his car under their supervision. When Foley left at 4:30 Service Decorators needed only a few hours in which to complete their contract with Valley Outdoor Theater Company. They had their equipment set up, and Phend, one of the members of Service Decorators admitted on cross-examination that he was anxious to get through with the job that night so that they would not have to come back. Roger, the appellant, and a member of Service Decorators, testified that he was "the one suggesting that we finish the screen and put in the overtime."
In accord with the rule existing in our Wisconsin cases, we hold that the doctrine of Standard Oil Co. v. Anderson, supra, also controls this case and upon the facts of the case determines whose work was being performed, for that question "is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work." At the close of the trial all of the evidence was to the effect that Service Decorators had complete control of the operation in which Hipp consented to use his car and operate it in response to orders to be received from Service Decorators. Phend testified:
" Q. You controlled the movement then as to when it [the scaffold] would be raised and lowered . . .? A. Yes, sir . . . .
" Q. . . . Red [Hipp] had to operate the vehicle to do that? A. He was told not to operate that vehicle, only to do so when told by one of us. . . .
" Q. So that all the time that Hipp was making these various movements prior to the accident . . . his acts were under your direction and control? A. Yes, sir.
" Q. Now, who gave the instructions or who told him to get into the jeep or to get into his car and move it in accordance with the directions . . . ? A. Those orders all came from me."
The learned trial judge, applying the principles governing the relationship of master and servant to the testimony given on the trial, portions of which are quoted above, ruled that the respondents were not liable for any damages resulting to the appellant by reason of any act on the part of Hipp; and that the relation between Hipp and Service Decorators, in which partnership plaintiff and appellant was a member, was that of employee and employer, or, as usually termed in legal parlance, the relation was that of master and servant. The ruling below must be affirmed.
By the Court. — Judgment affirmed.