134 Minn. 268 | Minn. | 1916
Plaintiff, while riding a bicycle on Hennepin avenue in Minneapolis, was injured in a collision with a motor truck driven by one Sather and belonging to defendant Twin City Motor Service Company. Plaintiff brought this action to recover for his injuries, joining as defendants C. S. Brackett Company, and the Twin City Motor Service Company. The alleged liability of C. S. Brackett Company is predicated upon the theory that the relation of master and servant existed between it and the driver of the motor truck. There was a verdict of $2,120 in favor of plaintiff and against defendant C. S. Brackett Company, which moved for judgment in its favoT notwithstanding -the verdict or for a new trial, and appeals to this court from an order denying this motion.
C. S. Brackett Company has for many years conducted a large wholesale and retail grocery business in Minneapolis. Prior to December 1, 1912, it did its own hauling, expressing and delivering, with horses and wagons of its own. Twin City Motor Service Company was incorporated in September, 1912, for the purpose, among others, of dealing in automobiles and motor trucks and doing a public service business. In October, 1912, it entered into a contract with appellant, by which it was provided that the Motor Service Company would do all the hauling of merchandise and delivery work of appellant during a period of three years from December 1, 1912. The Motor Service Company agreed to furnish all motor trucks necessary to do the work of delivering, a competent driver with each truck, and such extra men as might be necessary, the drivers and extra men to be satisfactory to appellant and to be assigned to its exclusive use. They were to report to appellant for work each week
A provision of the contract upon which counsel for appellant lay some stress is this: It was expressly agreed that, for any act or omission of the drivers or extra men as a result of which any injury or damage was sustained, or claimed to be, or any liability created or asserted, the drivers and extra men should be the servants of the service company, and not of appellant; the service company agreed to “indemnify, protect and save harmless” the appellant from and against all liability arising out of the operation of the trucks, or the negligence of the drivers or extra men, and agreed to carry liability insurance in a stated sum for the benefit both of itself and of appellant.
Appellant agreed to pay for the use of the trucks and the service provided for, the sum of $10,000 per year, in equal semi-monthly instalments, and an additional sum in case of increases in the monthly stops over those made in December, 1912, and January, 1913.
It seems to us that the facts bring this case within the numerous
Manifestly the provision in the contract that the drivers and other men should be considered the servants of the service company and that appellant should not be liable for their negligence is of no force as to plaintiff. It will be noted that the provision by which the service company agrees to save appellant harmless from liability for the negligence of the men rather contemplates that such a liability might exist.
Our conclusion is that it did not appear from the evidence as a matter of law that the service company was an independent contractor, and that the jury was justified in finding that the driver whose negligence caused plaintiff’s injuries was the servant of appellant. The instructions submitting this question were correct.
Order affirmed.
On October 13, 1916, the following opinion was filed:
The reargument of this case has not changed the views of a majority of the court. The decision is adhered to.