*421 OPINION
This case involves the well known “borrowed servant” doctrine. The plaintiff Blessing was the owner of a Chevrolet truck equipped for hauling animals. The plaintiff Plumb was the owner of some race horses in question herein. In the evening of August 16, 1948, after dark, the driver of the Chevrolet truck hauling the race horses was traveling westward along Thirteenth Street in the city of Casper. The street was dark and the driver of the Chevrolet truck was blinded by the glare of a car traveling eastward, so he ran into the back of a carnival or circus wagon, also called a trailer, loaded with carnival paraphernalia, belonging to the John R. Ward Shows which was standing still on the street and was without any lights. The trailer was being pulled or hauled by a truck belonging to the defendant Pittman. The driver was one Dennis Rush, who was in the general employ of Pittman. The truck and trailer had stopped in the street for the reason that *422 the hook-up between the truck and the trailer had become loose. The Chevrolet truck of Blessing was practically demolished and some of the race horses were so injured as to become practically worthless. The plaintiffs brought action against Pittman, doing business as the Pittman Transportation Company, for the damages to them thus caused. The defendant filed an answer denying liability and also an affirmative defense of contributory negligence. This affirmative defense has not been argued, and is waived. The case was tried to a jury. They returned the verdict of $2,000 in favor of Blessing and a verdict of $4,500 in favor of Plumb. The court reduced the amount due to Plumb to $3,245, to conform, as counsel for defendant say, to the maximum damages proven in the course of the trial. After the plaintiff had rested and again after all the evidence was in, the defendant moved for a directed verdict in his favor. Both motions were denied. The defendant also filed a motion for judgment in his favor notwithstanding the verdict of the jury. That motion, too, was overruled. Judgment on the verdict, with the amount reduced as above mentioned, was accordingly entered in favor of the plaintiffs and the defendant has appealed.
1. It is contended by counsel for appellant that Dennis Kush, who was in the general employ of Pittman, was, together with a truck, hired out to the Ward Shows and was controlled by its men, so that in the particular work done by Rush in hauling the carnival trailer, he was not in the employ of Pittman but the employee of the Ward Shows. They state among other things: “Appellant relinquished all control, direction and supervision of the trucks and their drivers to the John R. Ward Shows for the purpose of moving John R. Ward Shows’ equipment from the Burlington Railroad Siding in Casper to the Central Wyoming Fair *423 Grounds * * * * Appellant’s equipment was under the exclusive control and direction and supervision of the John R. Ward Shows * * * * Under the lease agreement, they (the drivers) were to work under the direction and supervision of the John R. Ward Shows’ foreman. * * * * At all times in the movement from the railroad siding to the Fair Grounds and return, they were under the direction and control of the carnival people. There was no supervision of this move in the hands of the Appellant. The Appellant contracted to lease the trucks and drivers and to do whatever work was assigned to them under the direction of the lessee.” Whether this contention is justified must be tested by the testimony in the case, which is comparatively meager, and is in substance as follows: Pittman was a trucking contractor. The carnival, circus or show people wanted four trucks to have their circus or carnival wagons, also called trailers, hauled from the siding of the depot of the Burlington Railroad Company in Casper to the Fair Grounds about a mile and a half west of Casper. Pittman was to furnish these trucks with driver and was to receive $7 per hour for the use thereof. One of these drivers was Dennis Rush, the one involved in the collision herein, who was in the general employ of Pittman before and “on or about” August 16, 1948, the day of the collision, and whom Pittman paid, according to Pittman’s own testimony. The drivers were to report at the siding at the Burlington Depot to get these wagons or trailers. They did so. The carnival men told the drivers or gave signals as to what trailer was to be moved. These trailers were then hooked on to the trucks by the Ward Shows’ men and were unhooked by the same men when the truck and trailer arrived at the Fair Grounds. On the trip there, the driver was accompanied by some the carnival men. One John Dalgarno testified that he was Pittman’s foreman at the time — which was denied by Pittman *424 —and he was employed to keep the trucks rolling so that the drivers would not stop for coffee and “horse” around. He was paid for his services by the show people and he collected the amount due Pittman and turned the money over to him. Pittman knew of the collision herein within about half an hour and saw John Dalgarno, and the inference may be drawn that he told the latter to investigate the collision. In any event, Dalgarno took one of Pittman’s trucks for the purpose of doing so. He further testified: “Q. And, as I understand your testimony on direct examination, Mr. Dal-garno, the control of the trucks and the drivers and even your control were under Mr. Ward or the Ward Shows or their foreman? A. That’s right, they told us what to do and we done it. They (the Ward men) told the drivers where to take them (the trailers). Q. Did their control extend to how the trucks should be driven, what speed? A. No.” The Pittman truck was equipped with all the lights required by statute. The trailer involved herein had no lights whatever.
The accident herein, as heretofore stated, happened after dark and no lights were on the carnival wagon or trailer of the John R. Ward Shows in question here. It is made a misdemeanor to drive or move such trailers without proper lights after dark. See §§ 60-601, 60-602, W.C.S. 1945. Dennis Rush, the driver of the truck which moved the trailer in question herein, violated that statute when he moved the trailer during the evening of August 16, 1948, and was personally liable for the damages proximately caused by reason thereof. And so was the owner of the Ward Shows, who permitted and asked the moving of the trailer in violation of the statute. So the question remaining herein is as to whether Pittman also was liable for the damages under the rule of respondeat superior by reason of the fact that Dennis Rush was in his employ
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ment. The subject is considered in 57 C.J.S. under Master and Servant, § 566; 60 C.J.S. under Motor Vehicles, § 436(c); 35 Am. Jur. § 578, p. 1012; 5 Am. Jur. § 384-388,. p. 722-25; a lengthy annotation is contained in 17 A.L.R. (2d) p. 1388 et seq. We considered the point to some extent in the case of Phelps v. Woodward Const. Co.,
It has been said that the law on the subject before us is chaotic and that respectable authority for almost any position can be found. Nepstad v. Lambert, Minn.,
As a matter of public policy and economic requirements a master is liable for damages caused by the negligence of his servant within the scope of the latter’s employment. See Stockwell v. Morris, supra. At the same time, it has long been recognized that a general employer may hire or loan his servant to another for some special service so that he may become the exclusive servant of such other for such special service. Restatement of the Laws of Agency, § 227. Whether tliat is true in a particular case depends on the circumstances. Most of the courts hold that the test is as to who controlls the servant, or rather who has the
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right of control. However, the term is somewhat vague. As pointed out in Dippel v. Juliano,
However, the Supreme Court of Minnesota in the case of Nepstad v. Lambert, supra, (p. 620), said on this point: “In the main, courts have relied on two tests in determining when a worker becomes a loaned servant. The first of these is the ‘whose business’ test. It asks: At the time of the negligent act ,which employer’s business was being done or furthered. The answer to this question names the responsible employer. The test is practically valueless where, as in the instant case, the general employer’s business consists of furnishing men to perform work for the special employer, because by doing his job the worker is necessarily furthering and doing the business of both employers.” See also 17 A.L.R. (2d) 1396; Benoit v. Hunt Tool Co.,
It would seem that in some cases at least, both of the tests mentioned by the courts might well be considered as factors in the case to determine as to which employer is responsible for the negligent act of the servant. Take the instant case. There is no question but that Pittman was engaged in the business of hiring out trucks for the purpose of hauling goods of others. He specifically undertook to haul the specific trailer in question here. Was the Ward Shows also engaged in the same business in the same sense as was Pittman? This is at least doubtful. Its property — the carnival wagons or trailers, containing carnival paraphernalia —seems to be transported from one town to another by railroad. So far as the record shows, the Ward Shows depends on truckers to haul its trailers from railroad stations to the grounds on which the circus or carnival is to be held. The “work” or “business” of so hauling the trailers with their paraphernalia is let out to a trucker. That is the situation at least in so far as
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the record before us shows and should be taken into consideration in determining the liability for the negligence of Dennis Rush, the servant in the general employ of Pittman. Thus in Blakey v. Capanna,
In the case of Thatcher v. Pierce,
In the case of Pennsylvania Smelting & Refining Co. v. Duffin,
In the case of Baltimore Transit Co .v. State,
In Tierney v. Correia,
Similar holdings will be found in DiGregorio v. Berg,
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No cases to the contrary have been cited. The case of Standard Oil Co. v. Anderson,
In the case of Carroll v. Dane,
The cases generally announce the rule, as heretofore shown, and as also stated in 57 C.J.S. 291, § 566, that liability of the general employer is not affected by the fact that directions are given to the driver by the hirer as to when and where to go and as to what shall be carried. In the case at bar, the route from the Burlington Depot to the Fair Grounds was presumably chosen by Dennis Rush, the driver, since the men of the carnival were strangers. At least it does not appear that they chose the route. John Dalgarno testified that he and the driver were under the control of the men of the Ward Shows. That was largely, if not wholly, a conclusion. See the Connecticut case of Tierney v. Correia, supra. There is no testimony in the record indicating that the carnival people in any way inter-ferred with the operation of the truck, or exercised any control as to the method of handling it. All that the carnival people told the driver was to haul the trailer from the Burlington Depot to the Fair Grounds. To hook it up to the truck was a necessary incident to *434 the work undertaken by Pittman. Pittman paid the driver, and he alone had the right to hire and fire him in connection with the work done. Suppose that a householder wants to move his household goods from one residence to another; that he loads these goods on his own trailer, calls up a trucker to send his truck and driver to haul the trailer, filled with goods, to the new abode, agreeing to pay a specific compensation; that the trucker sends his truck and driver, whom he pays to haul the goods as requested, and on his way to the new abode the driver is negligent and injures a third party, and nothing more appears, can there be any doubt that the owner of the truck is liable for the damages caused? We think not, and that is nearly the situation in the case at bar.
One factor, however, distinguishes this case somewhat from all the many cases which we have examined, and after a most diligent search, we have not found any direct authority on that point. The negligence here consisted of moving the trailer when it had no lights in direct violation of our statute and the penal provisions thereof. Failure to observe statutory requirements has been held to be negligence per se. 60 C.J.S. § 263, p. 642. Neither the driver nor his master were privileged to move the trailer in that condition even though asked to do so by the Ward Shows’ people. It was their duty to refrain from doing so. All of the parties involved are presumed to have had equal knowledge of the law. Whether or not Pittman personally knew of the absence of these lights does not appear. If he knew, he would, of course, be participant in the violation of the statute. Would it make any difference if he did not know? The point has not been argued, although it is the only point that might cast some doubt on the question before us. In the first place the presumption generally is, as already shown, that the serv
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ant remains in the employ of the general employer. So we are inclined to think that if the absence of knowledge on the part of Pittman makes any difference in determining his liability, the burden of proof of such absence of knowledge was in a case such as before us — we do not say generally — upon him. He has not met that burden. Aside from that, suppose that a railroad company transports game in direct violation of a legislative provision. If the game is packed in a closed package, so that the contents are not visible, then, it would seem, the railroad company should not be held liable for violating the legislative provision. Suppose, however, the game is in an open crate and the servants of the company accept and transport it, then, it would seem, the railroad company would be liable for the acts of its servants. By analogy this reasoning would seem to be applicable to the case at bar. The absence of lights on the trailer in question was visible and open for everyone to see. In Davis v. Boggs,
2. The court gave the following instructions to the jury:
“Instruction No. 11
“The Court instructs the jury that in order to determine who is responsible for any unlawful acts of an employee, it must be determined by whom such person is employed. If a servant is loaned or, for a consideration, is furnished by an employer to another person, the question of who is liable for the servant’s acts *437 generally depends upon which person has the right of direction and control and in whose business the servant was engaged while performing the act complained of. The responsibility for the servant is in the person who has direction and control over him. If both the original employer and the person to whom the servant is loaned or furnished have direction and control over the servant, then both may be responsible for his acts.
“In this case, plaintiffs, in order to recover from defendant, must establish by a preponderance of the evidence that the defendant had direction and control over the person whose negligence caused the accident complained of.”
It is objected that the court used the expression “in whose business the servant was engaged” instead of the phrase whose work was being done. It appears, however, from what we have already stated that counsel are drawing too fine a line. A further objection is made to that part of the instruction which states that the original employer as well as the person to whom the servant is loaned might be responsible. That it may be true at times is stated in 57 C.J.S. 290. It may be that that part of the instruction was academic in this case. But it was harmless, and not a cause for reversal herein.
3. The jury allowed the plaintiff Blessing the sum of $2,000 for the damage to his truck. Counsel for appellant claim that this was not justified. Blessing testified that the value as of July 29, 1948, the last time that he saw it, was the sum of $2,000. It is objected that it was not shown what the value was as of August 16, 1948, the day of the accident. However, there is a presumption of continuance of established facts or condition. 31 C.J.S. 741. That rule should doubtless be applied with reasonable caution. But July 29 was not
*438
very long before August 16, and the rule could reasonably be applied here. Blessing, the owner, counsel say, was not a competent witness as to the value of the truck. We have held otherwise in Shikany v. Salt Creek Transp. Co.,
We find no reversible error in the record, and the judgment of the trial court is affirmed.
Affirmed.
