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MATONTI v. RESEARCH-COTTRELL

January 31, 1962

Michael MATONTI
v.
RESEARCH-COTTRELL, INC.



The opinion of the court was delivered by: LUONGO

Before the Court are defendant's post trial motions for judgment on the whole record, for judgment n.o.v. and for a new trial. These motions stem from a civil action instituted by the plaintiff, Michael Matonti, to recover damages for personal injuries which he alleges were negligently caused by defendant, Research-Cottrell, Inc. Jurisdiction is based on diversity, plaintiff being a citizen of Pennsylvania and defendant a New Jersey corporation.

This case was tried to the Court and a jury, and resulted in a verdict for the plaintiff in the amount of Two Hundred Ten Thousand ($ 210,000) Dollars. Although the trial judge heard argument on defendant's post trial motions, his untimely death intervened before he had ruled on them.

 On October 11, 1961, oral argument was heard by Chief Judge Clary and the writer of this opinion, and by order dated October 13, 1961, the case was reassigned to the writer for disposition of defendant's motions.

 The facts of the accident and the injuries which resulted are not substantially disputed. However, the circumstances preceding the accident and particularly the legal inferences to be drawn therefrom, are sharply contested. The accident occurred on October 14, 1957, at the Schuylkill Generating Station of the Philadelphia Electric Company located at 28th and Christian Streets, Philadelphia, Pennsylvania. At the time, the Philadelphia Electric Company was engaging in major alterations of its Schuylkill Station. In connection therewith, it had entered into various contracts. For one, it had contracted with United Engineers and Constructors, Inc. (hereinafter 'United') on February 14, 1955 to perform, under the Philadelphia Electric Company's direction, the following:

 1. Demolition and relocation of existing facilities with alterations to present structures;

 2. Installation of a condensing turbogenerator together with intake and discharge facilities; and

 3. Installation of a boiler.

 United undertook to act as Philadelphia Electric Company's construction department and, pursuant to the contract, to execute the construction and installation work with its own forces. United also agreed, however, that it would sublet work when it was found to be to Philadelphia Electric Company's advantage to do so.

 On August 9, 1955, Philadelphia Electric Company had also entered into an agreement with Research-Cottrell, Inc. (hereinafter 'Research') pursuant to which Research was to design, manufacture, deliver, unload and erect at the Schuylkill Station one electric precipitator shell.

 Plaintiff was a construction worker, serving as a boiler maker or steam fitter. He had been hired through a Union Hiring Hall to work for Research, and for five or six weeks prior to the accident had been working for Research at the Schuylkill Station at 28th and Christian Streets. The Hiring Hall procedure was utilized since these men were not in the steady employ of any one concern. They were hired by the job which might last only a few days or for as long as several months.

 In connection with its work of installing the precipitator, Research had a stiff-leg derrick on the roof of one of the buildings at the construction site. The building was then some twelve stories high and apparently this was the only derrick on the roof at the time the accident occurred. The derrick consisted of an eighteen foot mast and a seventy-five foot boom. The mast was attached to the roof by a steel plate. Vertical movement was accomplished by electrical power, but lateral movement required the mast, which was on a swivel, to be pulled manually by blocks or by a pulley.

 Plaintiff was a signal man on the crew which operated the derrick. His job was to relay messages from the foreman, Eddie Verbit, to the operator of the derrick. The operator, because his vision was obscured by the building and equipment, could not observe the lifting process, and it was necessary for someone to indicate to him how to maneuver the load.

 Research's head man on the site was Cook, who was the erector. The foreman of plaintiff's crew was Eddie Verbit. George Doren was the superintendent in charge for United. McGeady, the job engineer, was second in command for United, and Mulligan was the general boiler maker foreman for United.

 It was Research's job to erect and install precipitators. There was nothing in its contract with Philadelphia Electric which required it to install fans. Part of United's job was the installation of certain fans. This required the raising of fan housings from the ground to the roof where they could be maneuvered into bays and installed by United.

 Arrangements for the use of Research's derrick and men were made approximately one week before the date of the accident between Cook, for Research, and Doren, for United, with McGeady of United present. A written purchase order was thereafter issued by United.

 On October 14, 1957, plaintiff reported to work before 8:00 o'clock in the morning. He spent the morning doing work for Research. After lunch plaintiff and three other men under Verbit were told to use the derrick to raise a fan housing for United. In connection therewith they were to work with Mulligan, United's foreman.

 The fan housing was in a field. It was brought over to the building to be lifted by the derrick. Mulligan hooked up the load and the fan housing was raised. When the load was raised to the required height it was necessary to pull the boom of the derrick laterally until the load was above the proper bay.

 The derrick had given the men trouble before. On at least one other occasion, October 7, 1957, when Research's men were also doing some lifting work for United, the boom stuck. On that occasion it was pulled free and the job was completed without incident. Verbit testified that Cook (who died between the time of the accident and the trial) had instructed Verbit, prior to the lift in question, that if the boom were to stick again, he was to do the same thing he had done on the prior occasion. In the course of pulling the load laterally, the boom did stick again. Verbit spoke to Mulligan about what steps to take and Mulligan told him to see Cook Verbit went to Cook who again instructed him to do as he had done before. Fearing that the boom was shaking too much to permit more pulling on it, Verbit contemplated instead the use of chain falls (a chain and gear device). He instructed his crew to leave everything as it was while a chain fall was secured, but while the crew was walking away, the boom collapsed.

 At the time of the collapse, Verbit was standing beside the plaintiff on a beam on the tenth or eleventh story of the building. The boom and load were directly above the plaintiff. When Verbit saw the boom collapse he shouted to warn the plaintiff but before the plaintiff could avoid the boom, it struck him on the head, knocking him down. As he attempted to rise, the boom 'twisted like a pretzel' and hit the plaintiff again, knocking him off the beam. He fell some twenty-five feet onto a concrete floor. From there he was removed immediately to the hospital.

 As a result of the accident plaintiff suffered serious injuries, so serious that defendant has not attacked the amount of the jury's substantial verdict in plaintiff's favor.

 The trial was a rather lengthy one and presented to the trial judge several difficult and complicated issues. Because in our view the jury was not given sufficiently detailed instructions to provide proper guidance to it in the determination of the complicated issues, we conclude that the interests of justice require the grant of a new trial.

 The resolution of two broad issues control the disposition of the motions before us:

 (a) adequacy of the instructions on the vexing problem of 'borrowed servant'; and

 (b) sufficiency of evidence to sustain the jury's finding of negligence on the part of defendant, Research, on the theory presented to it.

 As to the 'borrowed servant' or 'loaned servant' issue, since all of the operative facts in the case occurred in Pennsylvania, it is controlled by Pennsylvania law. Funk v. Hawthorne, 138 F.2d 686 (3 Cir.1943).

 There have been numerous 'borrowed servant' cases in the Pennsylvania appellate courts. The legal principles to be applied in such cases are relatively simple and the statements thereof rather clear. Nevertheless, we agree with the Pennsylvania Superior Court when, in referring to 'borrowed servant' cases, it said in Mitchell v. East Nantmeal Township, 181 Pa.Super. 482, 485, 124 A.2d 150, 151 (1956):

 The difficulty has been evidenced by the forty-six borrowed servant cases heard by the Pennsylvania Supreme Court as well as the twenty in the Superior Court from 1900 to 1959. Bartl v. Crawford Door Sales Co., 394 Pa. 512, 515, 147 A.2d 399 (1959).

 The pivotal issue in the instant case is whether plaintiff at the time he was injured was the servant of Research, his general employer, and thereby relegated to his rights under the Pennsylvania Workmen's Compensation Act or the servant of United, and thereby entitled to pursue a civil action. Relevant to the determination of this issue are certain basic definitions.

 "A master is one who stands to another in such a relation that he not only controls the results of the work of that other, but also may direct the manner in which such work shall be done.' 'A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling, and ...


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