Forrester v. Scott , 125 Ga. App. 245 ( 1972 )

Evans, Judge,

dissenting. "Ordinarily, when one lends his servant to another for a particular employment, the servant will be dealt with as a servant of the person to whom he is lent, although he remains the general servant of the person who lent him. Travelers Ins. Co. v. Clark, 58 Ga. App. 115, 122 (197 SE 650); Blakely v. U. S. Fidelity &c. Co., 67 Ga. App. 795, 797 (21 SE2d 339). In Fulghum Industries, Inc. v. Pollard, 106 Ga. App. 49, 52 (126 SE2d 432), it was announced by this court that the test to be applied in ascertaining if one is a loaned servant is composed of three elements: '(1) that the special master must have complete control and direction of the servant for the occasion; (2) that the general master must have no such control; (3) that the special master must have the exclusive right to discharge the servant, to put another in his place or to put him to other work.’ This case puts the accent on the question of control. It might be well to observe here that the-lack of control by the general master applies solely to lack of control as to the particular matter or occasion involved. The same is true of the rights of the special master to discharge the servant and to put another in his place-. This applies only to. the special matter or occasion. Ordinarily, one is not the servant of two masters, but the courts of this State have recognized the principle that one may be the servant of two masters and subject to the demands of both or either. See Hotel Equipment Co. v. Liddell, 32 Ga. App. 590, 592 (124 SE 92); Allen v. Landers, 39 Ga. App. 264, 265 (146 SE 794). Appellant relies upon Bibb Mfg. Co. v. Souther, 52 Ga. App. 722 (184 SE 421); Carstarphen v. Ivey, 66 Ga. App. 865 (19 SE2d 341); Reaves v. Columbus Elec. &c. Co., 32 Ga. App. 140, 148 (122 SE 824).” Merry Brothers Brick &c. Co. v. Jackson, 120 Ga. App. 716, 719 (171 SE2d 924).

Under the authority of the general rules set out above, before a summary judgment can be legally granted in this case, holding that the .loaned servant was. at the time of his death not the servant of his original employer, but the servant of the special master to whom he was loaned, three questions must be answered in the affirmative, to wit: 1. Did the special master have complete control and direction of the servant for the occasion? 2. Did the general master have no control or direction over the servant for the occasion? 3. Did the special master have the exclusive right to discharge the servant,, to put another in his place, or put the servant to other work?

The evidence submitted here of the loan- of a servant who was "borrowed” fails to show that no genuine issue as to. any material fact remained for jury determination. The affiant states that the servant was subject to his. orders and control (under his supervision and direction) and that he had the right to discharge him from this particular employment either upon completion- of the work or for his failure to properly carry out the work. Yet he states that the servant was the general servant and employee of the general contractor at the time of the happening of said "accident.” The questions of who paid the servant, who withheld the sums from his salary for the Internal Revenue Service, who paid workmen’s compensation for his employment, and what was the contract of lend and borrow by and between the subcontractor and the general contractor are all questions which have not been answered here, and require a jury determination from evidence to be had on a trial. Rather, what we have here is similar to the facts in Merry Brothers Brick &c. Co. v. Jackson, 120 Ga. App. 716, supra, where the act of the servant was for the benefit of his general master (general contractor) when performing for the subcontractor. What if the performance by the deceased had been unsatisfactory to the subcontractor? Was he no longer employed by the general contractor? What if the general master had needed him elsewhere? Could the subcontractor have prevented his leaving this work and performing the work of the general contractor? The jury would be authorized (though not required) to find under all the facts here that on the occasion in question the deceased was a servant of both parties. The evidence did not demand a finding that he was a special employee of the subcontractor, and his injuries arose out of and in the course of this employment.

It is my opinion that the lower court erred in granting summary judgment for the movant, and I therefore dissent.

I am authorized to state that Judge Quillian concurs in this dissent.