Miller v. Woolsey , 240 Iowa 450 ( 1949 )

I respectfully dissent.

I. The case is not reviewable de novo but only to correct errors at law. The findings of fact have the effect of a jury verdict. Rule 334, Rules of Civil Procedure. Whether such findings accord with the weight of the evidence is not here subject to review. Davis, Admx. v. Knight, 239 Iowa 1338,35 N.W.2d 23, and citations. The evidence must be construed in the light most favorable to the trial court's judgment. Ibid., and citations.

There should not be a reversal unless plaintiff was entitled to recover as a matter of law or, stated in another way, to a directed verdict if trial had been to a jury. Roth v. Headlee,238 Iowa 1340, 1342, 29 N.W.2d 923, 924. See also Kellogg v. Rhodes, 231 Iowa 1340, 1346, 4 N.W.2d 412, 416. Plaintiff does not argue he was entitled to recover as a matter of law nor does the record show such contention was made below. Plaintiff does admit "much stronger evidence must be produced in favor of appellant than in an equity action to reach a reversal of the lower court's decision."

II. It is true, as the majority indicates, the trial court's decision states the questions of negligence, contributory negligence and proximate cause need not be passed on. However, the court found "The evidence on the question of the operator's negligence is somewhat limited" and "not very conclusive." Further, plaintiff concedes the decision below is based not only on the ground the operator of the bulldozer was under plaintiff's control at the time of the injury but also on the insufficiency of evidence of the operator's negligence. (No negligence is charged except against the operator.)

Plaintiff's argument here states:

"The lower court denied appellant's right to recovery on the grounds: (a) That not sufficient evidence was submitted to charge the operator of the bulldozer with actionable negligence. (b) That at the time of the accident the operator was in the exclusive employment of appellant for this particular job, so his negligence could not be imputed to appellee.

"The appeal is limited to these two points, whether the record contains sufficient evidence to establish the negligence of the operator of the bulldozer and to impute such negligence to appellee."

Plaintiff's statement of errors is:

"The court erred in denying recovery to appellant for the reasons: (a) The record does not contain sufficient evidence that appellee surrendered all control and direction of his servant to appellant to make appellant alone liable for the acts of the servant. (b) The record does contain sufficient evidence to charge the operator of the bulldozer with actionable negligence."

Nearly half of plaintiff's argument is devoted to the contention there is sufficient evidence of the operator's negligence. It is apparent plaintiff misconceives the burden he assumes in asking a reversal of a decision in a law case on questions of fact. The issue here is not whether the testimony is sufficient to support recovery but whether it is so conclusive as to require recovery as a matter of law. Plaintiff is in the same position as if a jury verdict had been returned against him. In such event it would be of no avail to him to show the evidence was sufficient to have sustained a verdict in his favor. Davis, Admx. v. Knight, supra, and citations, especially Wilkins v. Howell, 194 Iowa 654, 190 N.W. 1.

Of course the burden of proof on the issue of the operator's negligence rested on plaintiff. We have recently held several times that in the absence of an admission by the adverse party it is seldom one who has the burden on an issue establishes his claim as a matter of law. Davis, Admx. v. Knight, supra, and citations; Roth v. Headlee, supra. This is especially true where the issue is one such as negligence which we have held time and again is ordinarily for the jury. Davis case, supra, and citations.

No one contends the evidence of the operator's negligence is so conclusive as to establish such claim as a matter of law. Clearly that issue would have been for the jury, not the court, if there had been a jury. This in itself entitles defendant to an affirmance.

Further, there is no testimony of the pecuniary damage plaintiff has suffered. Any judgment for him would of necessity be based on mere guesswork. The decision below might well have been placed on this ground.

III. Even if plaintiff had conclusively proven the operator's negligence and had shown the extent of his pecuniary damage, I do not think it appears as a matter of law the operator was subject to defendant's control and direction at the time of the injury.

I disagree with the majority's holding the burden of proof rested on defendant to show he surrendered to plaintiff control and direction over the operator. A party has the burden of proof as to a particular issue or the entire case who should not prevail if no evidence were introduced on either side. That an adverse party may have the burden of going forward with proof later in the trial does not alter this rule. Cakerice v. Reiss,230 Iowa 169, 173, 297 N.W. 305, 307, and citation; 31 C.J.S., Evidence, section 104a, pages 711, 712; 20 Am. Jur., Evidence, section 135. It is clear that if no evidence had been offered to show the operator was defendant's servant at the time of the injury plaintiff could not prevail as to such issue. Therefore plaintiff had the burden of proof as to such issue as well as the entire case.

The majority's holding the burden of proof rests on defendant as to this issue of control over the servant is based on this statement in Anderson v. Abramson, 234 Iowa 792, 794,13 N.W.2d 315, 316: "But the burden is upon the general employer to establish not only that he loaned the servant but that he surrendered control and direction over the servant to the borrower. See Hooper v. Brawner, 148 Md. 417, 129 A. 672, 42 A.L.R. 1437."

By the quoted statement we did not intend to hold the burden of proof, in the true sense, rests on the general employer to show surrender of control over the servant. Nor does Hooper v. Brawner, supra, so hold. What is meant is merely that the burden of going forward with proof of surrender of control rests on the principal employer after it is first shown the servant isin his general employ. This is the conclusion fairly to be drawn from Hooper v. Brawner and the authorities generally.

Neither Anderson v. Abramson, supra, nor Hooper v. Brawner, cited therein, is authority for the result reached by the majority. In each case there had been a directed verdict for the general employer, thereby holding as a matter of law control over the servant had been surrendered to the borrower. Upon appeal it was held in each case such question should have been left to the jury. In the cited cases the evidence was considered in the light most favorable to the appellant. Here, as stated, it is our duty to construe the testimony in the light most favorable to the judgment below.

"A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services." Restatement of the Law, Agency, section 227, page 500. The test of liability for acts of the servant is whether in the particular service he is engaged to perform he continues liable to the direction and control of his original master or becomes subject to direction and control of the person to whom he is loaned. It is not so much the exercise of control that is decisive as the right to exercise such control. 57 C.J.S., Master and Servant, section 566a, pages 286, 287; 35 Am. Jur., Master and Servant, section 541; annotations 136 A.L.R. 525, 42 A.L.R. 1416, 1418; Ash v. Century Lumber Co., 153 Iowa 523, 531, 133 N.W. 888, 38 L.R.A., N.S., 973.

The rule to be drawn from the authorities is that in the absence of evidence to the contrary there is an inference (some authorities say a presumption) that the servant remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by his general employer. Restatement of the Law, Agency, section 227, comment b; 57 C.J.S., Master and Servant, section 615a, page 393; 1 Labatt's Master and Servant, Second Ed., section 53, page 176; id. section 57, page 192; 1 Shearman and Redfield on Negligence, Rev. Ed., section 166, pages 395, 396.

When it is shown that the person claimed to have been negligent was the servant of the general employer he has the burden of going forward with the evidence to rebut the inference above referred to by testimony that he surrendered to the borrower of the servant the full right to control and direct him. See authorities last above, also 35 Am. Jur., Master and Servant, section 541; Hooper v. Brawner, supra, 148 Md. 417, 129 A. 672, 42 A.L.R. 1437, 1444.

The rule applicable here on the question of burden of proof as to control of the servant is analogous to the rule recognized in Landry v. Oversen (Ladd, C.J.), 187 Iowa 284, 286, 174 N.W. 255, 256; Heavilin v. Wendell, 214 Iowa 844, 848, 241 N.W. 654, 83 A.L.R. 872; Allbaugh v. Ashby, 226 Iowa 574, 581, 284 N.W. 816, and similar decisions.

The state of the pleadings is inconsistent with the majority's holding defendant had the burden of proof as to control of the servant at the time of the injury. Plaintiff's petition alleges "defendant * * * started to grade the dirt * * * with a bulldozer operated by Keith Huffman, a laborer in defendant's exclusive employment, acting within the scope of such employment andsubject to defendant's orders and control." (Italics added.) Defendant's answer is merely a denial. Generally, one who pleads the affirmative of an issue has the burden of proof on that issue. 20 Am. Jur., Evidence, section 135; 31 C.J.S., Evidence, section 104a, pages 710, 711. See also In re Estate of Ewing,234 Iowa 950, 955, 14 N.W.2d 633, 635.

Whether the original employer or a person to whom a servant was loaned had the right of control at the time of the injury is ordinarily a question of fact for the jury. 57 C.J.S., Master and Servant, section 617a (2), page 410; 35 Am. Jur., Master and Servant, section 541, page 971; annotation 42 A.L.R. 1416, 1418; 1 Shearman and Redfield on Negligence, Rev. Ed., section 166, page 397. Since there was no jury here I think the question was for the trial court and that there is substantial evidence to support its finding the right of control was surrendered to plaintiff.

At the time plaintiff's wall fell, dirt was being hauled by a truck from the outside and dumped near the open (south) end of a building, three sides of which had been built up with cement blocks. Huffman with the bulldozer was then pushing this dirt to the north along the east wall. After dumping one of the loads of dirt the truck became mired in the soft ground inside the building. Huffman was attempting to move the dirt to the east away from the rear of the stalled truck when the wall fell. The east wall cornered with the north wall but was unsupported by a wall on the south, a roof or otherwise.

Plaintiff was present overseeing the work. As the trial court found, he was his own superintendent of construction and it would seem he had the right to direct Huffman in the details of what he was to do. The fair inference is plaintiff had the same right of control and direction over Huffman as over the operator of the truck, jointly engaged with Huffman in the grading work.

The truck operator, a witness for plaintiff, testified:

"Mr. Miller [plaintiff] told him [witness] where to drop the dirt * * * what section he was to fill in first * * * and he wasoperating under Mr. Miller's instructions. * * * He [witness] dumped the load, pulled out, and the bulldozer would take that load and scoop it around."

Defendant's manager said on direct examination as plaintiff's witness:

"We always furnish an operator to take care of the machine and do what the party that rents the machine * * * wants to do with it. * * * The bulldozer is in charge of the man that rents the machine but the operations of the bulldozer are carried out by my operator; but the renter is the fellow that tells him what to do * * * where to move the machine too."

Plaintiff himself testified:

"I told him [defendant's manager] what I wanted done, * * * where I wanted that operated. * * * what I wanted to use it for. * * * Q. And did they start to do that work as you directed them? A. They went ahead and started to work on it. * * * I was around there practically all the time. * * * It had been partially filled on the outside and partially * * * at the southeast and northeast corners at my instructions. I had the boys haul dirt in and they got the bulldozer out and so it could be filled inside and outside. * * * Q. Had you at any time told the driver of the bulldozer to move the dirt behind the truck that was stuck? A. I did not definitely."

Plaintiff also said he asked Huffman once if he could not lower the blade of the bulldozer so as to get hold of more dirt. It is true, as the majority observes, plaintiff says that after the accident he told Huffman "he might as well quit for the day. The operator kept on working until the trucks were unloaded but no new dirt was brought into the building."

As might be expected, the arrangement between plaintiff and defendant for use of the bulldozer and its operator was informal. It doubtless did not occur to them to make any definite agreement as to the right of control over the operator. Whether such right was surrendered to plaintiff depends largely upon the proven facts and circumstances and the reasonable inferences therefrom.

As stated, under the authorities the decisive question is whether plaintiff had the right to control Huffman, not whether he exercised such right. I would hold there is sufficient evidence, viewed in the light most favorable to the judgment below, to warrant the conclusion plaintiff had such right of control.

Ash v. Century Lumber Co., 153 Iowa 523, 133 N.W. 888, 38 L.R.A., N.S., 973, cited by the majority is not analogous. There an injured bystander sought to hold defendant for the claimed negligence of the driver of a team owned by a third person which had been engaged to haul lumber for defendant. A directed verdict for defendant was affirmed because there was no evidence the driver was the servant of the lumber company regardless of whether he was in the general employ of the owner of the team or was merely the hirer thereof. It is apparent the burden was on plaintiff to prove the driver was the servant of defendant at the time of the injury. Certainly no burden rested on defendant. The owner of the team, who would be the general employer if there was one, was not a party to the action.

The majority cites Ida Grove Independent Sch. Dist. v. Ida County, 226 Iowa 1237, 1241, 286 N.W. 407, where a judgment for plaintiff had been rendered in a jury-waived case. We found no support in the record for the judgment and reversed it. Obviously in the cited case defendant was entitled to prevail as a matter of law — to a directed verdict if there had been a jury. For reasons herein pointed out that is not the situation here and the cited case is not in point.

In Haldeman v. Addison, 221 Iowa 218, 265 N.W. 358, the remaining decision cited by the majority, there had been a judgment for defendant in a jury-waived case brought on a promissory note admittedly signed by defendant. We reversed the judgment because there was no evidence to support the affirmative defense interposed by defendant in an attempt to avoid liability. The opinion emphasizes the fact there was no dispute in the testimony and the case involved only the application of rules of law to undisputed facts.

I would affirm.

BLISS, OLIVER and HALE, JJ., join in this dissent.