315 Mass. 108 | Mass. | 1943
The plaintiff was employed by the Albert Culver Co., hereinafter called Culver, as an operator of a large ten-wheeled tank truck. He drove the truck upon the premises of the corporate defendant, hereinafter called the oil company, for the purpose of obtaining fuel oil and kerosene. After getting a written order at the office of the oil company, he drove the truck into one of the stalls located under elevated tanks and loaded on the quantity of
The two requests for instructions were to the effect that the jury might consider, as evidence of the plaintiff’s contributory negligence, the fact, if it was found to be a fact, that the" plaintiff attempted to board the truck while it was in motion. There was a conflict in the evidence as to just what the plaintiff was doing immediately before he was caught between the truck and the catwalk. These re
The remaining and principal contention of the defendants is that Culver was an independent contractor who had entered into a contract with the oil company, an insured employer, by which it was to do the latter’s work and that by virtue of G. L. (Ter. Ed.) c. 152, § 18, the plaintiff, who had not reserved his right of action at common law against Culver, which was also insured, had no rights to maintain against the oil company or against its employee, the defendant Glencross. The defendants in support of this contention offered in evidence a statement of stipulated facts which were admitted by the parties to be true if material. Upon objection of the plaintiff, the judge, subject to the exceptions of the defendants, excluded this evidence. It appears from these stipulated facts that both Culver and the oil company were insured under the workmen’s compensation act; that the plaintiff had not reserved any cause of action at common law against his employer; that the oil company was engaged in marketing, selling and distributing gasoline, fuel oil, kerosene and other petroleum products; that Culver was engaged in buying and selling petroleum products, coal, grain and ice; and that, at the time of the accident, the plaintiff was on .the premises of the oil company to purchase fuel oil and kerosene in accordance with a written contract executed between the oil company and Culver. This contract, which was called a “Distributor’s Sales Contract and License Agreement,” in which
The question is whether the stipulated facts, which included the written contract, were sufficient to support the contention of the defendants, or at least sufficient to present a question of fact, that Culver was an independent contractor performing the oil company’s work. Culver bought and paid for the goods that it purchased from the oil company. The goods belonged to Culver. It could resell them to any customers it chose within the territory described in the contract. It could sell for cash or credit. The proceeds of its sales belonged to Culver. It was under no obligation to furnish the oil company with a list of customers or in any why to account to the oil company for any transactions Culver had with its own customers. There was nothing in the stipulated facts indicating that Culver agreed to perform work for the oil company or to accomplish anything for or in behalf of the oil company. Culver was a dealer buying and selling petroleum products on its own account and for its own benefit, although its right to sell these products was limited by the terms and conditions imposed by its vendor. Culver conducted its own business, selling to its own customers and receiving as its only compensation whatever
The evidence already summarized was sufficient to support the plaintiff’s cause of action and there was no error in denying the motions for directed verdicts.
Exceptions overruled.