
    Halkias, Appellee, v. Wilkoff Co., Appellant.
    (No. 29096
    Decided February 24, 1943.)
    
      
      Mr. Thomas A. Glaros, Mr. Dahl B. Cooper and Mr.. Com,us Beard, for appellee.
    
      Mr. C. L. Robinson, for appellant.
   Hart, J.

Substantially, the sole controversy in this-case relates to the question whether the person who-operated the crane causing plaintiff’s injury was at the time acting as .an employee of the defendant and had authority to perform such operation.

The testimony offered by the plaintiff in chief showed that some person without notice to the plaintiff, undertook to operate and did operate the crane from its position at the end to a point near the center of the building where the wheels or truck of the crane came in contact with the plaintiff while he was at work near the crane track on one of the sidewalls of the building. This crane operator was not identified either as to name or as to his employer. No testimony was offered as to his authority to move or operate the crane. At the close of plaintiff’s testimony the defendant moved for a dismissal of the action and also for a directed verdict in favor of the defendant. Both motions were overruled.

Of course, to establish a cause of action, it was essential for the plaintiff to show that the operator of the crane was an employee of the defendant and had authority to operate it at the time of the accident. Lima Ry. Co. v. Little, 67 Ohio St., 91, 65 N. E., 861; White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, 102 N. E., 302. The burden to produce such proof by a preponderance of the evidence was upon the plaintiff.

Does the fact that the crane was located on the premises of the defendant and was there being operated, give rise to an inference that the operator was an employee of the defendant and had authority to so operate it?

The general rule is that the law raises no presumption of agency. It is a matter to be proved. 2 American Jurisprudence, 349, Section 442. Some courts, however, hold that proof of ownership of an instrumentality, such as the crane in this case, is sufficient to establish a prima facie case that a person operating pt is in the owner’s employ for that purpose, and as such is, at a- specific time, acting within the scope of his authority.

This court, however, is committed to the proposition that proof of ownership alone is not sufficient to raise such an inference of fact. To raise such an inference, it must be shown, in addition to such ownership, not only that the operator is an employee of the owner but that he is employed generally in the business of his employer to operate such instrumentality. White Oak Coat Co. v. Rivoux, Admx., supra; Lima Ry Co. v. Little, supra; Sobolovitz v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634; Braun v. Averdick, 113 Ohio St., 613, 150 N. E., 41; Lashure v. East Ohio Gas Co., 119 Ohio St., 9, 162 N. E., 41; Tice v. Crowder, 119 Kan., 494, 240 P., 964, 42 A. L. R., 893, and annotation. See, also, Judson v. Bee Hive Auto Service Co., 136 Ore., 1, 297 P., 1050, 74 A. L. R., 944, and annotation; Miller v. Service & Sales, Inc., 149 Ore., 11, 38 P. (2d), 995, 96 A. L. R., 628, and annotation; 26 Ohio Jurisprudence, 679 and 680, Sections 674 and 676.

This rule has been adhered to by the Courts of Appeals of this state in a long series of decisions. Rosenberg, a Minor, v. Reynolds, 11 Ohio App., 66, 70, 72; Rad, Jr., v. Gamble, 13 Ohio App., 488, 490; Schmidt & Schmidt, Partners, v. Schwab, 17 Ohio App., 127, 128; Holmes v. Yellow Taxicab Co., 28 Ohio App., 382, 385, 386, 162 N. E., 710; Goodyear Tire & Rubber Co. v. Marhofer, 38 Ohio App., 143, 147, 176 N. E., 120. See, also, House v. Stark Iron & Metal Co. (Ohio App.), 34 N. E. (2d), 592.

In support of this rule, Judge Newman, in the course of his opinion in the case of White Oak Coal Co. v. Rivoux, Admx., supra, decided by a unanimous court, said:

“There are some authorities which go to the extent of holding that where the plaintiff has suffered injury from the negligent management of a vehicle, it is sufficient prima facie evidence that the negligence is imputable to defendant, when it is shown that he is the owner of the vehicle, without even proving affirmatively that the person in charge is the defendant’s servant. * *
“But this court is not in accord with the authorities ■which hold that a prima facie case of negligence is .made against a defendant upon the mere showing that he was the owner of the negligently operated automobile. Such a rule would be unjust and would work hardships. An automobile may be in the possession of one who wrongfully appropriates it to his own use, yet, under that doctrine, if such person negligently operates it to the injury of a third person, a prima ¡facie case of negligence would be imputed to the owner. .Nor do we think that proof of the additional fact that .the operator was an employee of the owner raises a presumption of negligence against him, unless it appears that the duties of the employee are in connection with the automobile or that he was operating the same >with the authority — express or implied — of the owner.”

In the case of Sobolovitz w. Lubric Oil Co., supra, .the plaintiff sought a recovery from the defendant by •showing only that the truck which injured him bore •the name of the defendant company, without any identification of the operator of the truck or his relationship, if any, to the defendant. Judge Robinson, delivering the opinion in that case, said:

“In the instant case the jury, in the absence of proof to the contrary, were justified in inferring the ownership of the truck by reason of the name of the •defendant being upon it. But upon that inference it •could not base an inference that the truck was being •operated by a servant of the defendant, or that it was being operated in furtherance of the business of the •defendant.
“This court would be loath to lay down a rule which •would relieve the plaintiff of the burden of proving the essential facts necessary to create liability and impose upon the defendant in the first instance the burden of proving the non-existence of such facts. But, on the contrary, the majority of this court adhere to the rule that before the defendant is put upon his defense the plaintiff must produce some proof of every fact necessary to create a liability, or some proof of a fact from which a reasonable inference may be deduced which tends to create a liability, and that an inference cannot be predicated upon an inference. To sustain the verdict in this case would require the enunciation of a rule creating liability upon the part of the master, upon proof of a fact from which the master’s ownership of the truck causing the injury might be inferred, without any proof of the relationship between the operator and the master, and without any proof of the nature of the enterprise in which the operator of the truck was engaged, and would place upon the defendant the burden of proving the nonexistence of the relationship of master and servant, and that the truck was not being operated in behalf of the owner.”

When such essential facts as indicated in the last two above-cited cases are shown, an inference arises that in operating the instrumentality at any specific time, the operator is acting within the scope of his authority, and this stands as an item of evidence, subject to be counterbalanced or overthrown by other competent evidence. Klunk v. Hocking Valley Ry. Co., 74 Ohio St., 125, 77 N. E., 752; Cleveland-Akron Bag Co. v. Jaite, an Infant, 112 Ohio St., 506, 148 N. E., 82; State Automobile Mutual Ins. Assn. v. Lind, 122 Ohio St., 500, 172 N. E., 361; Industrial Commission v. Schick, 125 Ohio St., 419, 181 N. E., 892. No such inference, however, can arise until it is first shown that the person operating the instrumentality is in fact employed by the owner for that purpose. To hold otherwise would be to base one inference upon another, which is not permitted. Sobolovits v. Lubric Oil Co., supra; St. Marys Gas Co. v. Brodbeck, Admr., 114 Ohio St., 423, 151 N. E., 323; Thomas v. Black, 118 Ohio St., 412, 161 N. E., 208; 39 Ohio Jurisprudence, 814, 816 and 846, Sections 190, 191 and 206.

In plaintiff’s case in chief there was no evidence .that the operator of the crane, at the time of plaintiff's injury, was an employee of the defendant or that lie was engaged in the defendant’s business. Under .such circumstances the motion of the defendant to direct a verdict in its favor, made at the close of plaintiff’s case, should have been sustained.

The next question which naturally arises is whether the error of the court in overruling defendant’s motion, as above noted, was still available to the defendant. It did not rest its case at that point but chose to go forward and did go forward with its defense. Where a motion of a defendant for a directed verdict made at the conclusion of plaintiff’s evidence is overruled, the defendant has an election either to stand on his exception to the ruling or to proceed with his defense; and if he accepts the ruling, however erroneous it may be, and proceeds with his defense, introducing evidence on his own behalf, he thereby waives his right'to rely on his original motion. City of Zanesville v. Stotts, 88 Ohio St., 557, 106 N. E., 1051; Youngstown & Suburban Ry. Co. v. Faulk, 114 Ohio St., 572, 578, 151 N. E., 747. On the other hand, if a defendant renews his motion to direct a verdict at the close of all the evidence, he challenges not the sufficiency of the evidence that was alone before -the court and jury at the time the original motion was made, but the evidence and the state of the record as it exists at the conclusion of all the evidence. Cincinnati Traction Co. v. Durack, Admx., 78 Ohio St., 243, 85 N. E., 38; 39 Ohio Jurisprudence, 872, Section 216.

In this case, the defendant in its defense established additional facts and circumstances which require further consideration. It was developed that coincident with the cleaning and painting being done on th$ over.head structural work and walls of the warehouse building of the defendant by the Central Painting Company, ■certain concrete pickling váts were being constructed ■on the floor or ground surface at the south end of the .same building by the John L. Joyce Company, as an .independent contractor, employed for that purpose by ■the defendant.

It is now urged by the plaintiff that the record does ■not disclose that the John L. Joyce Company performed the work as an independent contractor. How■ever, the undisputed testimony shows that the men who did the work were employed by the John L. J oyce •Company- which was engaged in the business of installing all kinds of concrete work, sidewalks, floors •and walls. Both parties during the course of the trial treated the John L. Joyce Company as being employed ■by the defendant as an independent contractor. During the court’s charge, counsel for defendant requested the court to charge on that subject, whereupon the •court, without objection from counsel for plaintiff, did •charge the jury to the effect that if the crane, at the time of plaintiff’s injury, was not operated by a person acting for the defendant but for and on behalf of the John L. Joyce Company, then the Wilkoff Company could not be charged with the conduct of this ■operator of the crane. Furthermore, the court directed the jury to determine what the relationship of 'the crane operator was to the defendant company before proceeding to determine whether the operator of the crane was or was not negligent. Under this state •of the record, it is now too late for the plaintiff to assert as a fact, that which it did not assert during the 'trial, namely, that the John L. Joyce Company was not an independent contractor employed as such by the defendant.

The testimony shows 'that in constructing the con•crete pickling vats which were 25 feet wide, 30 or 40 feet long and 6 feet deep, it was necessary to move a number of yards of earth in order to level up the bottom of these vats before pouring the cement floor. To have this earth so removed, Gregory Ramm, a foreman of the John L. Joyce Company, went down to another shop or building of the defendant where about 14 of defendant’s employees were at work digging ditches, and made a request that a man come up to the shop where the vats were being installed and operate the shop crane to move the earth in question.

The legal relationship of the person who operated the crane to the defendant and to the John L. Joyce Company at the time of the accident, must be determined from the testimony of two witnesses who testified on this subject. The testimony of Gregory Ramm, a foreman of the John L. Joyce Company, was as follows:

. “Q. And did you have occasion on that morning to use the facilities of the Wilkoff Company, that is any of their machinery? A. Yes, we had the walls in and we were getting the floor base, the sub-base for the dirt ready for the floor or bottom of the pit and we. needed more dirt to bring it up to the right grade to place the concrete and I think there was three buckets holding about two yards of dirt piled in there full of dirt and needed a crane to lift them and to pick them up.
“Q. What did yon do? A. Well, I looked around' there for somebody I figured was in charge and I went outside, there was. men working outside putting a sewer in or something. I found a man looked like he was in charge and I asked if he could get a crane down there and he said he would, and I came back inside and went to work. * * *
“Q. What did you do in order to get this crane, who did you go to see? A. I went to see a man who looked to me to be in charge of putting the pipe line in, whatever they are doing outride.
“Q. To a Wilkoff man were you looking for in ■order to get permission to use the crane? A. Yes, I was looking for sort of a boss of the Wilkoff firm and •this man looked to me as though he was. * * *
“Q. And you went to him and talked to him and .asked him for a crane operator? A. I asked him if I could get the crane down to make a lift.
“Q. What did he do? A. He said he would so I -walked away.
“Q. Hid he go immediately or send a man? A. I ■don’t remember whether he sent a man or went himself, I just told him and then I left. * * *
“Q. And that crane operator was an employee of the Wilkoff Company? A. I couldn’t say, I don’t know even who ran the crane.”

The person who responded to the request .of Eamm "to operate the crane was Joseph Ferarra. He was then and for two years had been employed by the Wilkoff Company as a steel gauger, and on the day in •question was working in or near the new building. For two years prior to the last two years above mentioned, ■he had been employed as a crane operator by the defendant company. He was not, on the day of plaintiff ’»■ injury, a boss or foreman of the defendant company, but worked under another as his boss. Ferarra, after •explaining that on the morning in question he was working at the new building gauging steel, testified ■as follows:

“Q. Do you recall who those men were? Never-mind. Were you at any time during that morning called outside the building? A. Well, yes, .a fellow •came up and asked me to go down to the lower shop where there was some work, to come and run the crane; I told him I had no authority.
“Q. Who was that fellow? A. I don’t Mow him. # * *
‘ ‘ Q. Did you go ? A. After I had hesitated I thought I would help him out some and started down. I told the fellows working with me to go ahead and clean up until 1 got back. * * *
“Q. You were called upon to lift that dirt out of that pit and take it where? A. They were dumping it over on the side or back on the tracks.
“Q. And you had done that before? A. No.”

On cross-examination Eerarra testified further as follows:

“Q. What brought you over into this lower warehouse building? A. A fellow came up and asked me to run the crane.
“Q.' Who is this fellow? A. I don’t know him.
“Q. Was he a Wilkoff man? A. No, I know that.
“Q. How was it you left your line of work you were doing for the Wilkoff Company to go and help a man that asked you to come over and operate a crane? A. I did it as a favor.
“Q. You are an employee of the Wilkoff Company and you have a boss, haven’t you? A. Yes. * * *
“Q. And he tells you when to work and you mean to tell this jury here that some man came over and asked you to operate a crane over in a different building from where you were and while you were working for the Wilkoff-Company in order to do a favor? A. That is right.
“Q. Does that sound like a good employee of the company? A. That is not for me to answer.”

It seems to the majority members of this court that the record fails to disclose that Eerarra had any authority, either because of his own relationship to the defendant, or from any other person authorized to speak for the defendant, to abandon, the work to which he had been assigned and in which he was then engaged, and go to another part of defendant’s property to render service to one who was on the property in the relation of an independent contractor to the defendant.

And if it were conceded that Ferarra had been authorized to leave his regular employment and to go as requested by the John L. Joyce Company to render service for it, the defendant would not be liable for his negligent act while engaged in such service. Under such circumstances he had the status of a loaned employee so far as the defendant was concerned. The rule applicable to such a situation is stated in the case of Rourke v. White Moss Colliery Co. (Eng. L. R.), 2 C. P. Div., 205, as follows:

“* * * when one person lends his servant to another for a particular employment, the servant for anything done in that particular employment must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.” See, Braun v. Averdick, supra, at page 616.
“If the employer temporarily loans his general servant to assist the contractor, and the servant thereby comes under the control of the contractor, the original relation of master and servant ceases and the contractor alone is liable for the negligence of the servant while he has control of Ms movements.” 27 American Jurisprudence, 511, Section 32; citing Higgins v. Western Union Telegraph Co., 156 N. Y., 75, 50 N. E., 500, 66 Am. St. Rep., 537; New Orleans, B. R., V. & M. Rd. Co. v. Norwood, 62 Miss., 565, 52 Am. St. Rep., 191; and Powell v. Virginia Construction Co., 88 Tenn., 692, 13 S. W., 691, 17 Am. St. Rep., 925. See, also, 21 Ohio Jurisprudence, 647, Section 23.

On this subject, 35 American Jurisprudence, 970, Section 541, says:

“Indeed, as a general proposition, if one person lends his servant to another for a particular employment, the servant, for anything done in that employment, is dealt with as the servant of the one to whom, he has been lent, although he remains the general servant of the person who lent him. An employer is not liable for injury negligently caused by a servant if the-latter is not at the time in the service of the employer,, but in the special service of another, although the question of liability is ultimately dependent upon the determination of who has the power to control and direct at the exact time of the act in question. In other words,, in determining whether, in respect of a particular act,, a servant, in the general employment of one person,, who has been loaned for the time being to another is the servant of the original employer or the person to whom he has been loaned, the test is whether in the-particular service which he is engaged to perform, the servant continues liable to the direction and control of his general employer or becomes subject to that of the person to whom he is lent, — whether the latter is in control as proprietor so that he can at any time-stop or continue the work and determine the way in which it is to be done, with reference not only to the-result reached but to the method of reaching it.”' See, also, Samuelian v. American Tool & Machine Co., 168 Mass., 12, 46 N. E., 98; Brown v. Jarvis Engineering Co., 166 Mass., 75, 43 N. E., 1118; Moss v. Chronicle Publishing Co., 201 Cal., 610, 258 P., 88, 55 A. L. R., 1258; Ramsey v. New York C. Rd. Co., 269 N. Y., 219, 199 N. E., 65, 102 A. L. R., 511; 1 Restatement of Agency, 500, Section 227.

Since the question of liability is always predicated upon some specific act of the servant, it is not important whether he remains the servant of the general employer as to matters generally, but whether, in performing the act in question, he is acting in the business of and under the direction of the general employer or that of the temporary employer. The mere fact that the general employer continues to pay the wages of the servant who has committed the wrong will not make such employer liable for the wrongful act where it appears that the person, to whom the servant is lent, controlled him entirely as to the work done. Miller v. Minnesota & N. W. Ry. Co., 76 Iowa, 655, 39 N. W., 188.

Who was the employer of Ferarra in the operation of the crane at the time of the accident in question depends upon whether he was sent by his general eim plover to assist the independent contractor in prosecuting the work and business of his general employer, the defendant here, or whether he was sent or went to the independent contractor to take orders from it and to assist it in performing what was required of it in carrying out its contract with the defendant.

The majority members of this court take the view that Ferarra, at the time in question, was engaged in the latter capacity. In the case at bar the instrumentality, the crane, was not being operated in the ordinary course of business of the defendant. In this respect the present case is to be distinguished from the case of Hozian v. Crucible Steel Casting Co., 132 Ohio St., 453, 9 N. E. (2d), 143. There is no evidence that the defendant had agreed to operate the crane for the John L. Joyce Company or had given permission to the Joyce company to operate the crane in connection with its work, and especially no evidence, aside from the testimony of Ferarra as above set out, that the defendant had offered or agreed to furnish a crane operator for that purpose. The defendant did not retain control over Ferarra, but when he responded to the request which the John L. Joyce Company made of him, he was attempting not to move steel or scrap which was the business of the defendant, hut to perform work for the John L. Joyce Company in moving dirt for its benefit in the performance of its contractFerrara was then subject to its orders and it could have directed him to cease work for it at any time. To-discharge him from its employment did not require his discharge from his general employment with the defendant.

At the conclusion of all the evidence, the defendant, renewed its motion for a directed verdict. The court, should have sustained this motion but failed to do so. ■ The judgment following a verdict for the plaintiff was erroneously affirmed by the Court of Appeals. The-judgment of the Court of Appeals is reversed and final judgment is entered for the defendant.

Judgment reversed.

Matthias, Zimmerman, Bell and Turner, JJ., concur.

Weygandt, C. J., and Williams,-J., dissent.

Weygandt, C. J.,

dissenting. The sole complaint upon which this court is asked to reverse this judgment is that the trial court was in error in refusing to direct a verdict in favor of the defendant. Motions therefor were duly interposed and overruled at the-close of the plain tiff’s evidence and again at the conclusion of all of the evidence.

A study of the record in this case discloses that on August 26,1939, when he was injured, the plaintiff was an employee of the Central Painting Company which-had been engaged by the defendant to do certain cleaning and painting in and about one of its buildings in which it had an electric crane. Likewise, there was then-under construction in the same building a so-called con-' crete pickling vat, which work was being done for the defendant by still another concern called the John L. Joyce Company. On the above-mentioned date the Joyce Company in the course of its work found it necessary to move certain loose earth that had been placed in large buckets. These were of such weight that a crane was needed to lift them. Although the defendant’s building was equipped with an overhead crane, the defendant, the Wilkoff Company, was not using it at that moment. In order to obtain the assistance of one of the defendant’s experienced crane operators to lift the buckets and thereby expedite the work, a foreman of the Joyce Company took the precaution to go outside the building and talk to a man who appeared to be in charge of some of the defendant’s regular employees then temporarily engaged in digging ditches nearby. After the request was made one of the defendant’s employees named Joe Ferarra came into the building and started to operate the crane. At that instant the plaintiff as an employee of the painting company was astride the elevated crane track where he was doing the .work of cleaning and painting. When he first observed that the crane was moving it was within four or five feet of him. He tried to escape but found himself trapped, and one of the wheels mutilated his right hand before his outcries attracted the attention of the operator who then stopped the crane.

The defendant’s contention is that the record discloses no evidence from which reasonable minds could draw the conclusion that Joe Ferarra was acting within the scope of his employment when he operated the defendant’s crane and injured the plaintiff. Restated more specifically, the defendant urges that the record contains no “evidence showing that an 'official with authority in the employee of the Wilkoff Company loaned the crane operator to the foreman of the Joyce Construction Company; but if such were the fact * * the Wilkoff Company” would be absolved “from any liability, because at the time the plaintiff was injured, tlie Wilkoff employee was doing the work of the Joyce Company.”

The first part of this contention of the defendant is answered both in the evidence offered by the plaintiff and in that adduced by the defendant. One of the plaintiff’s witnesses testified in part as follows:

“Q. So then, Mike, did you know the craneman? 'A. If I see.
“Q. How did you know him, how did you know he was a Wilkoff man? A. I seen him just two days.
“Q. Had he operated the crane before? A. Yes, the man who runs the crane.
“Q. In that building? A. Yes.
“Q. You knew He was a Wilkoff Company man? A. I see that two times, the first day I move the paint, the second day go and ask for crane. * * *
“Q. And you knew this was a Wilkoff Company man, the other men you didn’t know? A. Master mechanic going to see the fellow run the crane. The'master mechanic sent him in. ”
One of the defendant’s witnesses was Gregory Raima, the foreman of the Joyce Company, who testified in part as follows:
“Q. What did you do? A. Well, I looked around there for somebody I figured was in charge and I went outside; there was men working outside putting a sewer in or something. I found a man looked like he was in charge and I asked if he could get a crane down there and he said he would, and I came back inside and went to work. * * *
“Q. What did you do in order to get this crane, who did you go to see? A. I went to see a man who looked to me to be in charge of putting the pipe line in, whatever they are doing outside.
“Q. To a Wilkoff man were you looking for in order to get permission to use the crane? A. Yes, T was looking for sort of a boss of the Wilkoff firm and this man looked to me as though he was.
££Q. And you went there for the purpose of asking a foreman or someone in charge of the plant of the Wilkoff Company in order to get a crane operator to work, I mean to do something for you, is that right? A. Yes.
££Q. And you went to him and talked to him and asked him for a crane operator? A. I asked him if I could get the crane down to make a lift.
££Q. What did he do? A. He said he would so I walked away.
££Q. Did he go immediately or send a man? A. I don’t remember whether he sent a man or went himself,. I just told him and then I left.
££Q. What? A. I went up to him like I would go up to you and tell you what I wanted'and walk away, you said you would and I walked away.
££Q. Then what did you do ? A. I went back inside about my own work.
££Q. There was a crane operator sent to you? A. No, nobody was sent to me.
££Q. Well, how did you know it was a crane operator after you had this conversation with him that came over and offered his services? A. You could hear the crane coming down the line.
££Q. And after that conversation with the supervisor on that job of the Wilkoff Company the next thing you saw was the crane coming down? A. Yes.
££Q. You didn’t offer to pay this crane opei-ator anything for his services for use of the crane? A. No, I wouldn’t have any authoihty to do that.
££Q. And that crane operator was an employee of the Wilkoff Company? A. I couldn’t say, I don’t know even who ran the crane.
££Q. You talked to a supervisor or a superintendent or sombody in authority there at the Wilkoff Company? A. He seemed to me to be, I don’t know the name.
“Q. But he seemed to be someone who had authority around that plant, is that right? A. That is right.”

In view of this testimony this court manifestly should be slow indeed to hold that the record discloses no evidence from which the jury reasonably could conclude that the crane operator was loaned or sent by someone with actual or apparent authority for the defendant company.

The next part of the defendant’s contention is that, even if there is evidence that its crane operator was loaned or sent by someone in authority, the operator was doing the work of the Joyce Company, thereby relieving the defendant from liability. However, this view disregards the testimony of Mr. Ramm that the selection of the operator, Ferarra, was made by the defendant’s foreman alone. As above quoted, Mr. Ramm testified that he made .the request and then returned to his work without waiting to learn what man was sent. One of the defendant’s witnesses testified that the company had two crane operators on its payroll. Ferarra was one of them; and he testified that he had been “a craneman for approximately three years.” Then he began working as a gauger but occasionally was assigned to operate the crane again. One of the defendant’s timekeepers testified as follows:

“Q. Mr. Glassburg, just one question, on this particular day, August 26, will you tell us from your records who among the 18 men working were competent to operate the crane?
“Mr. Glaros: He said there were two cranemen working. A. Joseph Ferarra, Stanley Moresko.”

According to this evidence Ferarra was selected and loaned or sent by the defendant for a temporary, limited purpose, and the right of control and retention remained in the defendant from whom he received his only wages. The application of the doctrine of respondeat superior depends upon the power of control which the superior possesses and which for the protection of third persons he is required to exercise over the conduct and activities of his subordinates. Consequently, the doctrine has application only in cases where the power of control exists, and such power does not exist where the special employer has no voice in the selection or retention of the negligent subordinate. Billig, a Minor, v. Southern Pacific Co., 189 Cal., 477, 209 P., 241; Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. Ed., 480, 29 S. Ct., 252; Hooper v. Brawner, 148 Md., 417, 129 A., 672, 42 A. L. R., 1437; 26 Ohio Jurisprudence 625, Section 602; Babbitt v. Say, Admr., 120 Ohio St., 177, 165 N. E., 721; Sack v. A. A. Nunn & Son, 129 Ohio St., 128, 194 N. E., 1. The following summary of the rule appears in 35 American Jurisprudence, 971, Section 541:

“A master cannot avoid liability for the negligent act of his servant by merely showing that at the time of the injury, he had loaned the servant to another; but he must also show that when he loaned him, he surrendered to the borrower the right to control and direct him. To escape liability, the original master must have resigned full control of the servant for the time being; it is not sufficient that the servant was partially under the control of another.”

Hence, the single fact that the defendant’s crane operator was momentarily performing certain work for the Joyce Company does not absolve the defendant company from liability for his negligent acts.

It is of course not the duty of this court to weigh the conflicting evidence and determine the credibility of the various witnesses. This review is limited to a determination whether the record discloses favorable evidence from which reasonable minds can draw the factual conclusion that the defendant’s paid employee was acting within the scope of his employment when he operated the defendant’s overhead crane and injured the plaintiff who was properly at work on tire defendant’s premises.

It is respectfully submitted that the trial court was not in error in refusing to direct a verdict for the defendant under these- circumstances, and the judgment should be affirmed.

Williams, J.

dissenting. This cause hinges on whether Ferarra, an employee of the Wilkoff Company, was acting within the scope of his authority in operating the. crane which inflicted injury upon plaintiff.

The Wilkoff Company owned a plant consisting in part of a large building equipped with a traveling crane. The John L. Joyce Company was constructing some pickling vats in this building and the Central Painting Company was working under an agreement with the Wilkoff Company for cleaning and painting in and about the building in which the crane was located.

The authority of Ferarra to operate the crane as an employee of the Wilkoff Company may be either express or implied.

There is evidence to show that a foreman of the John L. Joyce Company spoke to a person who appeared to be foreman of a gang of the Wilkoff Company’s employees digging ditches on the premises outside the building and asked of him that a man be sent to operate the crane. An unidentified man came to Ferarra and requested that he, Ferarra, operate the crane, to which request Ferarra responded. Ferarra testified that such unidentified man was not a “Wilkoff man”; but it is immaterial who conveyed the message from the foreman to Ferarra so long as it was delivered.

From such evidence an inference of express authority could be drawn. This inference is reinforced by many other facts from which, standing alone, authority could be implied. The crane 'had been previously used by the.painting company to move scaffolding. Therefore it might well be considered available for urgent needs of others doing work on .the premises. In the same building were three buckets of about two cubic yards capacity which were filled with dirt and could be moved in a practicable way only by use of the crane. The Joyce Company had reached a point in its construction work where “more dirt was needed” before concrete could be placed in the vats, as must have been foreseen. The Joyce Company had no employee who could operate the crane and only two employees of the Wilkoff Company, who were trained to operate it or had operated it, were working that day. Concededly it must have been anticipated that one of these two employees of the Wilkoff Company would move the dirt by crane when occasion arose in the progress of the work, since the moving of the dirt by crane was necessary to accomplish the work being done and was in the interest of the Wilkoff Company.

The day plaintiff was injured and before the injury was inflicted, Mike Lambrakis of the Central Painting Company told the master mechanic that the painters would be working that day in that building. The “boss of the crane operators” said there would be no work “on the crane” that day and it would be all right to “put him [plaintiff] on the track” and “go ahead.” Ferarra and the other craneman testified but did not relate such incident. The master mechanic was not called as a witness. The Wilkoff Company was in possession of the plant and in fact had itself moved steel by use of the crane on the morning of that day. The master mechanic and the “boss of the crane operators,” whoever he was, were about the premises and did nothing to prevent the crane from moving nearly 200 feet in violation of assurances before striking plaintiff. Giving such assurances show not only control of the crane at such time but also an intention and determination to keep that instrumentality' under control. But when the crane was moved for the purpose of transferring the dirt as a necessary step in the construction of the vats, there was no interference on the part of those exercising control on behalf of the Wilkoff Company. Eerarra had never been forbidden to engage in the operation of the crane. In these facts lies the implication of authority to serve his master to a useful end.

With such a question as arises here the evidence must be given the interpretation most favorable to the plaintiff. Having placed such an interpretation upon the facts, we can only conclude that the trial court was warranted in submitting the cause to the jury.  