'Under some circumstances a person may be the servant of two masters at the same time; and the general servant of one master may, with his consent, be lent to another person and become his servant with respect to a particular transaction or piece of work.
'Ordinarily a person cannot be the servant of two masters at the same time. There are, however, exceptions to this rule; and under some circumstances a person may have two different employers concerning whom his rights may differ. Thus a person may be the servant of two masters at one time and as to one act, even though they are not joint employers, provided the service to one does not involve abandonment of the service to the other.
'Servant lent or hired to another. The general servant of one person may be lent to, and become the servant of, another by submitting himself to the direction and control of the other with respect to a particular transaction or piece of work, even though the general employer has an interest in the special work, and in such case the servant remains the general servant of the lender except as to the particular work done for the borrower. However, such a relation between the borrower and the servant is not established unless it appears that the servant has expressly, or by implication, consented to the transfer of his services to the new master, and unless the lender surrenders and the borrower assumes the power of supervision and control.'
The facts here support the conclusion that Keystone for its own reasons approached the government on the basis that it needed the temporary loan of some of its enlisted personnel in connection with its contract on the Casa Grande. The request was granted and during certain off duty hours at night, these men performed work for Keystone. They were paid by Keystone and were subject to its immediate direction as to how the work should be done. It follows that during the periods which this work was being performed, the status of the enlisted personnel was that of employees of Keystone. Pennsylvania Co., etc. v. Philadelphia Electric Co., 331 Pa. 125, 200 A. 18. Thus, even if the defective staging in question were erected by these Navy men, liability therefor cannot be attributed to the government. Compare Leonard v. United States, 10 Cir., 235 F.2d 330: United States v. Sharpe, 4 Cir., 189 F.2d 239.
The conclusions here reached make it unnecessary to decide whether or not the plaintiff was wholly responsible for his own injury
and whether or not the Navy enlisted personnel or civilian employees of Keystone had actually welded the defective supports, a sharply disputed point.
In conclusion, the work in which Allen was engaged at the time of his injury was not traditional ship's work and, consequently, he was not entitled to the absolute warranty of seaworthiness. Moreover, although the government was duty bound to use reasonable care for his safety, it was guilty of no negligence which in any way contributed to his fall. The government not being liable, it necessarily follows that there can be no liability over on the part of Keystone under the indemnity contract.
What has been said herein shall constitute findings of fact and conclusions of law.
Order upon notice.