71 Ind. App. 353 | Ind. Ct. App. | 1919
— This action was commenced by appellee against the appellant and Roy Perkins to recover damages for personal injuries caused by appellee being struck and run over by a motor truck driven by one Harold Hays, who was alleged to have been the servant of appellant and Perkins. There was a verdict in favor of appellee against appellant, and in favor of Perkins, upon which judgment was rendered. Appellant filed a motion for a new trial, for the reasons that the verdict of the jury is not sustained by
This cause involves the question'as to when a servant in the general employment of one person becomes, with regard to a particular transaction, the servant of another. Perkins owned the truck, kept it in repair, bought the oil and gasoline therefor, and employed Harold Hays to drive it. Hays was a chauffeur by occupation, and had been driving the truck three or- four years prior to the time of the accident.
Appellant owned and operated a factory for making paint, also had a store where it sold paint at retail. About two'years prior to the time of the accident appellant and Perkins entered into an oral arrangement, whereby Perkins was to furnish appellant a truck and driver for the purpose of delivering goods for appellant. Appellant was to, and3 did, pay Perkins $35 a week for the use of the truck and driver. The exact nature of this arrangement is not clearly disclosed by the evidence. Mr. Perkins testified that he had two trucks, one of which he drove for the Stewart-Carey Glass Company, and the one which Harold Hays drove. When asked to state what arrangement he had with the appellant in connection with the delivery of its goods he said: “My arrangement with Mr. Sargent was to do the delivering for so much a week and furnish him a truck and driver. I hired the drivers, paid them and discharged them. I paid for the repairs on the truck, and for the gasoline and oil used in running it. Harold Hays drove the truck for the Sargent Paint Company. They directed him on his deliveries. The only directions I
Harold Hays testified that Perkins hired him and agreed to pay him $15 a week. Perkins told him that he had made arrangements with the appellant to furnish appellant with a truck and driver and deliver goods for them, for which he (Perkins) was to receive $35 a week. The witness was asked whether or not Mr. Perkins told him that he (Hays) would receive orders what to do, that they would consist of sale slips and that he (Hays) could route himself and deliver to the best advantage to take up the least time according to the sale slips, to which he answered: “No Sir, he did'not tell me anything in regard to that because I was to learn that when I got there.” He also testified that Perkins told him that the appellant would sho°w him the process of the work; that, when he got there each morning, he found there were sale slips made out of goods to be delivered; that he and the shipping clerk placed the' goods in the car to the best advantage in making deliveries so as not to cover the ground twice. In making the deliveries no one gave him any orders to go a certain way. He was left to his own discretion in routing himself. When he made a delivery he would return to the appellant’s place of business and wait until other orders came in or until something was wanted from the warehouse, and that he went over to the warehouse for stock nearly every morning.1 Sale slips were made out for each delivery, indicating to whom and where the delivery was to be made. When making c. o. d. deliveries he collected the money and
"When asked what directions he received from Perkins when he first went to work with the paint company, and in testifying what Perkins said to-him, he said: “He told me that they would show me the process of the work when I got to the Sargent Paint Company.” He kept the truck at his home except in bad weather when he kept it at the garage;.that he was required to be at appellant’s store each working day of the week at seven o ’clock in the morning and was required to deliver and haul anything he was asked to haul for the appellant. Sometimes at the request of Mr. Perkins he would drive the truck on Sundays and take people to picnics and different places, this being at times outside of which he' was required to be at appellant’s place of business.. The name of appellant was painted on the truck.
The bookkeeper of appellant testified: “We had a contract with Perkins. He was to look after the delivering and see that our goods were delivered about the city -for which we paid him $35 a week. Roy Perkins’ name was on the payroll. Harold Hays’ was not.”
Lambert Mack, appellant’s order clerk, testified that: “Perkins was hired to do our hauling. I would get my orders in rotation and hand them to Hays,, and
This is in substance all of the evidence throwing any light upon the nature of the agreement between the appellant and Perkins, and the method used in carrying it out and in carrying- on the business of appellant in so far as the use of the truck and driver and the delivering of goods sold by appellant. Apr pellee was injured by reason of the negligence of Hays in driving the truck in question while delivering paint sold by appellant. The said arrangement between appellant and Perkins had been in existence about three years at the time of the accident, during all of which time Hays drove the truck, except for short periods when, for some reason not disclosed by the evidence, Perkins would send another driver to take his place.
Appellant in its brief says that all of the errors relied upon for a reversal can be determined by ascertaining whether Hays was the servant of appellant or of Perkins.
Appellant says that the question of- what constitutes an independent contractor is ordinarily one of
In the case of Higgins v. Western Union Tel. Co. (1898), 156 N. Y. 75, 50 N. E. 500, 66 Am. St. 537, where a similar question was under consideration, the court stated the rule as follows: “The question 'is whether, at the time of the accident, he was engaged in doing the defendant’s work or the work of the contractor. * * * The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct.” This, test . and rule has been applied and followed in many cases. Among them are Parkhurst v. Swift (1903), 31 Ind.
“The general rule is that a party injured by the negligence of another must seek his remedy against the person who caused the injury, and that such person alone is liable. The case of master and servant is an exception to the rule, and the negligence of the servant, while acting within the scope of his employment, is imputable to the master. * * * The fact that the party to whose wrongful or negligent act an injury may be traced was, at the time, in the general employment and pay of another person, does not necessarily make the latter the master and responsible for his acts. The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct. Servants who are employed and paid by one person may, nevertheless, be ad hoc the servants of another in a particular transaction, and that, too, when their general em
In Foster v. Wadsworth-Howland Co. (1897), 168 Ill. 514, 48 N. E. 163; id., 50 Ill. App. 513; id., 60 Ill. App. 600, cited by appellant, the question under consideration was whether an instruction directing a verdict for the defendant was erroneously given. The court said: “The driver of the wagon which caused the injury was not an employee of appellee nor subject to its orders, but was under the control and in the employ of Smiddie. Smiddie contracted to do the hauling, which contract necessarily carried with it the duty to employ such assistants as might be required. His relationship with appellee was therefore in the nature of a contractor, rather than servant. * * * Appellee exercised no control over the driver of this wagon; it did not employ him; it did not pay him; it had no right to discharge him, nor had it the right to direct how or in what manner his work should be done, further than it should conform with its agreement made with Smiddie. Under the circumstances the driver of the wagon was not the servant of appellee, and, consequently, there could be no liability against it.” (Our italics.) The court based its decision on the case of Wood v. Cobb (1866), 13 Allen (Mass.) 58, where the plaintiff was struck by a wagon driven by one Wheeler, whose wagon had just left the place of business of the defendants loaded with their goods. The court further said: “It developed that the defendants contracted with one Foster to deliver all their goods, and Foster, being sick, had asked permission to have Wheeler drive his wagon.
In Burns v. Michigan Paint Co. (1908), 152 Mich. 613, 116 N. W. 182, 16 L. R. A. (N. S.) 816, the only evidence to show that the driver was a servant of appellee was the fact that appellee’s sign was attached to the wagon. The court held that the undisputed evidence showed that the driver of the wagon was an independent contractor, and that under such circumstances there could be no recovery as to the paint company.
In Tuttle v. Embury, etc., Lumber Co. (1916), 192 Mich. 385, 158 N. W. 875, Ann. Cas. 1918C 664, the appellant furnished his own team and was hauling lumber at a fixed price per thousand. In discussing the question, the court said: “In some cases much stress is laid upon the fact that the work to be performed is of an indefinite amount subject to discharge and control in that regard. Others, whether the employment is of a general, independent character, like that of draymen and common carriers, becomes the controlling question. We are of the opinion that the test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between the independent contractor and a servant or
. In W. S. Quinby Co. v. Estey (1915), 221 Mass. 56, 108 N. E. 908, the court said: “It was for the jury to say what the contract of the parties was and what conclusions should be drawn from the evidence concerning the relation of Day to the plaintiff and to the defendant. * * * The jury were authorized to find that Day was the servant of the defendant and hot the servant of the plaintiff.” In this case, the appellant hired to appellee a horse and wagon and driver for the sum of $29 per week to deliver merchandise for the plaintiff. The driver, Day, through his negligence, lost certain property belonging to the plaintiff. The action was brought by plaintiff against appellee to recover the value of such property.
In Chicago, etc., Brick Co. v. Campbell (1904), 116 Ill. App. 322, appellee was injured by a collision between a street car and a wagon loaded with brick
Driscoll v. Towle (1902), 181 Mass. 416, 63 N. E.
In Foster v. City of Chicago (1902), 197 Ill. 264, 64 N. E. 322, the city entered into a written contract with John Sheehy, providing that Sheehy should furnish all the labor and materials and do all the work necessary to fully complete a certain sewer. John Shea was.a laborer employed by Sheehy on said work, and in the course of his ejnployment was killed. The action was commenced against the city on the theory that Shea was a servant of the city. The contract being in writing, the court correctly held that it was a question of law' for the court to say whether the injured party was a servant of the city or of Sheehy.
Of the cases just reviewed, all of which were cited by appellant, Tuttle v. Embury, etc., Lumber Co.; W. S. Quinby Co. v. Estey, Chicago, etc., Brick Co. v. Campbell, and Driscoll v. Towle held that the question whether the driver was the servant of the defendant was a question of fact to be submitted to the jury. In Foster v. City of Chicago, supra, the contract was in writing, the construction of which was necessarily a question of law for the court.
In Falender v. Blackwell (1906), 39 Ind. App. 121, 79 N. E. 393, the court held that it was proper to submit the question to the jury, and that the verdict was supported by the evidence. In Indiana Iron Co. v. Cray, supra, the jury returned a special verdict, and appellant was contending that on the facts as found it should have judgment. In Zimmerman v. Baur (1894), 11 Ind. App. 607, 39 N. E. 299, the question arose upon demurrer to the complaint and answer. In Marion Shoe Co. v. Eppley (1914), 181 Ind. 219, 104 N. E. 65, Ann. Cas. 1916D 220, there was no conflict in the evidence, and but one conclusion could be drawn from it. In Teagarden v. McLaughlin (1882), 86 Ind. 476, 44 Am. Rep. 332, a father had let a contract to a minor son to clear a certain tract of land. The son negligently started a fire and destroyed property of another. The father when sued asked the court to
There is no claim that Perkins had a contract to deliver all the goods sold by appellant. When there were more orders than Hays could deliver with the truck, appellant would hire some one with a horse and wagon to help out, as testified to by the order clerk.
The work which Hays was' called upon to do was not complicated, and according to the testimony of Perkins was not specifically described in the arrangement made with appellant. .It did not require elaborate' terms' in order., to - exercise control over the driver of the truck-while the work was in progress. No definite arrangements were made regarding the manner in which the goods were to be delivered. Perkins "did not visit the scene of the work to ascertáin what was to be doné or how it could be performed. He did not ask any questions about the work or give any directions as to how it should be done. He'was