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02/24/95 HOSEA O. WEAVER & SONS v. LOUISE GORDON

February 24, 1995

HOSEA O. WEAVER & SONS, INC.
v.
LOUISE GORDON TOWNER, ET AL.



Appeal from Mobile Circuit Court. (CV-90-002839). Edward B. McDermott, Trial Judge.

Rehearing Overruled May 12, 1995, . Second Rehearing Overruled June 23, 1995. Released for Publication November 28, 1995.

Maddox, Shores, Houston, Cook, and Butts, JJ., concur. Kennedy, and Ingram, JJ., concur in the result.

The opinion of the court was delivered by: Maddox

MADDOX, JUSTICE.

This appeal involves a question relating to the burden of proof when the "loaned servant" doctrine is involved. The specific issues are: 1) whether the trial court erred in denying the defendant's motion for a directed verdict and 2) whether the trial court erred in granting the plaintiffs' motion for new trial when it determined that it had failed to properly charge the jury that the defendant had the burden of proving its affirmative defense, the loaned servant doctrine. The defendant appeals from the trial court's order denying the defendant's motion for a directed verdict and the trial court's order granting the plaintiffs' motion for a new trial. We affirm.

Many of the basic facts are contained in our opinion written on an earlier appeal in this case. See, Towner v. Hosea O. Weaver & Sons, Inc., 614 So. 2d 1020 (Ala. 1993). Brasfield & Gorrie General Contractors, Inc. (hereinafter "B & G"), contracted to build a water filtration plant in Semmes, Alabama. After completing the Semmes project, B & G sent its heavy machinery to other job sites. Thereafter, Anthony Jones, a B & G supervisor, noticed that a pipe at the Semmes site needed re-excavation and repair. Jones telephoned the president of Hosea O. Weaver & Sons, Inc. (hereinafter "Hosea Weaver"), a local contracting company, and requested the use of a backhoe and an excavator for the repair job. On May 22, 1990, after reporting to work at Hosea Weaver, the worker, Ladon Hilliard, was taken by William Morgan, a Hosea Weaver employee, to the Semmes site and introduced to Anthony Jones. Jones instructed Hilliard to remove the dirt from around the leaking pipe, on both sides. Hilliard excavated the pipe, and Freddie Towner and another employee of B & G entered the trench to repair the leak. A wall of dirt collapsed, killing Towner.

At the first trial, the plaintiffs, Towner's wife and son, alleged that Hosea Weaver had negligently performed excavation at the job site by and through its employee Hilliard. See Towner v. Hosea O. Weaver & Sons, 614 So. 2d 1020 (Ala. 1993). The jury returned a verdict for Hosea Weaver and the court entered a judgment on that verdict. Id. This Court reversed the judgment and remanded the case for a new trial, because the trial court had erred in failing to give the plaintiff's proposed jury charge that fully explained the right-of-control test used to determine whether Hilliard was acting as an employee of B & G or as an employee of Hosea Weaver. Id. In the second trial, the jury again returned a verdict for Hosea Weaver; however, the trial court granted the plaintiffs' motion for a new trial, holding that it had erred in failing to instruct the jury that the loaned servant doctrine was an affirmative defense, and, thus, that Hosea Weaver had the burden of proving that Hilliard was a loaned servant of B & G. Hosea Weaver appeals.

I

Hosea Weaver says that the trial court should not have reached the issue of whether to grant the plaintiffs' motion for a new trial; it argues that it was entitled to a directed verdict because, it says, the plaintiffs failed to establish that Hilliard owed a legal duty to determine, before Towner was allowed to work in the hole, the required angle of slope of the excavation walls or the need for shoring or safety boxes. Hosea Weaver's primary basis for this argument is the testimony of the plaintiffs' expert witness Salvador Boscareno, who was employed as a compliance officer with the Occupational Safety and Health Administration within the Department of Labor. (R. T. 128.) As an OSHA compliance officer, Boscareno testified, part of his job was to assure that businesses were complying with OSHA rules and regulations. Hosea Weaver asked Boscareno who would be considered the responsible or "competent person" at the accident site according to the OSHA rules and regulations. Boscareno responded by defining "competent person" according to the OSHA rules and regulations as a person who is able to identify hazards associated with excavation and trenching and is able to determine whether an unsafe condition exists. (R. T. 146.) The full definition of "competent person," as stated in the rules and regulations reads as follows:

"(b) Definitions applicable to this subpart.

"Competent person means one who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them."

29 C.F.R. § 1926.650 (1994).

A motion for directed verdict is a procedural device by which one party tests the sufficiency of the other party's evidence. See, Rule 50(a), Ala.R.Civ.P.; Alabama Power Co. v. Williams, 570 So. 2d 589 (Ala. 1990); John R. Cowley & Bros., Inc. v. Brown, 569 So. 2d 375, 376 (Ala. 1990); J. Hoffman & S. Guinn, Alabama Civil Procedure § 8.37 (1990). The ultimate question, of course, is whether the nonmovant has presented sufficient evidence to allow submission of the case or issue to the jury for a factual resolution. Hoffman & Guin, (supra) , at § 8.37.

The standard of review applicable to a motion for directed verdict is the "substantial evidence rule." See, § 12-21-12(a), Ala.Code 1975; Koch v. State Farm Fire & Cas. Co., 565 So. 2d 226, 228 (Ala. 1990). To withstand a motion for a directed verdict, a party must have presented "substantial evidence" supporting each element of his cause of action or defense. Id. "Substantial evidence" has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989); see Ala. Code 1975, § 12-21-12. Also, we note that in reviewing a ruling on a motion for a directed verdict, we must view all the evidence in a light most favorable to the nonmovant ...


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