Joslin v. Idaho Times Publishing Co.

• Decision Date: 07 October 1935
• Docket Number: 6190
• Citation: 56 Idaho 242,53 P.2d 323
• Parties: L. E. JOSLIN and SARAH M. JOSLIN, His Wife, Respondents, v. IDAHO TIMES PUBLISHING COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

53 P.2d 323

56 Idaho 242

L. E. JOSLIN and SARAH M. JOSLIN, His Wife, Respondents, v. IDAHO TIMES PUBLISHING COMPANY, a Corporation, Appellant

No. 6190

Supreme Court of Idaho

October 7, 1935

MASTER AND SERVANT-EXISTENCE OF RELATIONSHIP-EVIDENCE-PRESUMPTION-AUTOMOBILES-INJURIES-ACTION FOR DAMAGES AGAINST EMPLOYER-PRIMA FACIE CASE-BURDEN OF PROOF-CONTRIBUTORY NEGLIGENCE.

1. In suit for injuries against employer of person whose motorcycle struck plaintiff while plaintiff was fixing tire of automobile on city's business street, plaintiff held required to make prima facie showing that person riding motorcycle was servant of defendant at time of accident where such fact was alleged in complaint and denied in answer.

2. Relationship of "master and servant" exists whenever employer retains right to direct manner in which business shall be done as well as result to be accomplished.

3. Evidence held insufficient to establish relationship of "master and servant" between newspaper company and employee who delivered papers, so as to render newspaper company liable for negligence of employee in operation of motorcycle while delivering papers.

4. In suit for injuries against employer of person whose motorcycle struck plaintiff while plaintiff was fixing tire of automobile on highway, plaintiff's contributory negligence held for jury.

5. Presumption of relationship of master and servant exists where alleged servant is working on premises of master or driving vehicle belonging to employer or under certain circumstances where he is neither on premises nor using owner's vehicle.

6. Presumption that person who is working in some capacity for another is employee and not independent contractor cannot avail in favor of party relying thereon whose evidence refutes such presumption.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Reversed and remanded for a new trial.

Judgment reversed and cause remanded for a new trial. Costs to appellant.

Chapman & Chapman, for Appellant.

If one renders service to another in the course of an occupation representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished, he is an independent contractor. (31 C. J., pp 473-475; 14 R. C. L., p. 67 et seq.; Goble v. Boise Payette Lumber Co., 38 Idaho 525, 527, 224 P. 439; Magee v. Hargrove Motor Co., 50 Idaho 442, 296 P. 774.)

The mere fact that the employer reserves a right to supervise or inspect the work during its performance does not make the contractor a mere servant, where the mode and means of performance are within the control of such contractor. (Goble v. Boise Payette Lumber Co., supra; 14 R. C. L., p. 69, sec. 5, note 20; Watson v. Hecla Min. Co., 79 Wash. 383, 140 P. 317; Salliotte v. King Bridge Co., 122 F. 378, 58 C. C. A. 466, 65 L. R. A. 620.)

Where plaintiff's own evidence clearly discloses contributory negligence on his part, it operates to defeat his case and may be availed of by motion for nonsuit, or instructed verdict for defendant, there being no issue of fact for the jury. (Magee v. Hargrove Motor Co., supra; Dale v. Jaeger, 44 Idaho 576, 258 P. 1081; Mayer v. Anderson, 36 Cal.App. 740, 173 P. 174.)

Bothwell & Povey, for Respondents.

One performing work for another is presumed to be an employee of such other and the burden is upon the person for whom the work is done, who seeks to be relieved from liability arising from such relation, to establish an independent contract. (39 C. J. 52, sec. 28; Oklahoma City Const. Co. v. Peppard, 43 Okla. 121, 140 P. 1084; Dibble v. San Joaquin Light & Power Corp., 47 Cal.App. 112, 190 P. 200.)

The vital test in determining whether a person is an independent contractor or a mere servant is the control of the work which is reserved by the employer. The ultimate question is not whether the employer actually exercises control over the doing of the work, but whether he has the right to control. (Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; 14 R. C. L. 67.)

Contributory negligence is generally a question of fact for the jury and should be submitted to the jury where reasonable minds might differ as to whether plaintiff was guilty of contributory negligence proximately causing the accident. (Pipher v. Carpenter, 51 Idaho 548, 550, 7 P.2d 589, and cases cited.)

GIVENS, C. J. Budge, Morgan, Holden and Ailshie, JJ., concur. Morgan, J., dissents.

OPINION

GIVENS, C. J.

January 6, 1934, at 4:30 P. M., Wesley Kirkman, carrying newspapers on a motorcycle for appellant, collided with respondent, L. E. Joslin, who was pumping up the left rear tire of his automobile on one of the principal business streets in Twin Falls, causing a multiple compound fracture of Mr. Joslin's leg between the knee and ankle. From a verdict and judgment in favor of respondents, appellant seeks relief on three grounds. First, that Kirkman was an independent contractor and not its servant; second, respondent, L. E. Joslin's, contributory negligence, and third, instructions given and refused.

While several points of difference between the relationship of master and servant, making the master responsible for the torts of the servant, and that of independent contractor, all of the authorities cited by both parties, and others, universally recognize the right to control the actions of the servant on the one hand in the performance of his duties, and the lack of right of control of the independent contractor in the performance of his services on the other, as being one of the essentially controlling factors.

The complaint alleged that Kirkman was at the time and place of the accident employed by appellant as its agent, servant and employee. The answer appropriately denied this and alleged the relationship was that of an independent contractor. Without going further as to the burden of proof, it was thus essential that the respondents at least make a prima facie case. (Axtell v. Northern Pacific Ry. Co., 9 Idaho 392, 74 P. 1075; Magee v. Hargrove Motor Co., 50 Idaho 442, 296 P. 774; 39 C. J. 1355-1357.)

The evidence on this point consists solely of the testimony of Kirkman and his predecessor, Rice, paraphrased as follows:

(Wesley Kirkman on Direct Examination.)

"I was starting to deliver my papers as the accident occurred and presume that I was working for the Times on that day. Had been working approximately a week. Had no written contract for employment and couldn't say who hired me. Was hired under these conditions: Mr. Rice wanted to give up the route so I asked him if I could take it over from him, so he went and saw the officials at the Times office and they said it was all right so I went to work. The route covering the district between Twin Falls, Buhl and Castleford. I went to work about three o'clock in the afternoon. First saw that my mail was all ready, then wrapped my singles for each customer and after that was all done loaded it on the machine and left. I was using a motorcycle. At the Times I talked or dealt with Bill Moore the fellow who counted the papers out about getting my mail and papers and reported to him. Al Westergran called the Circulation Manager had charge of the work there. About the only dealing I had with him was to deliver the mail. I don't think I got my pay from him at all. All I got was starts and stops and customers; that is, people who subscribed and people I stopped to deliver the papers to. I got my list of customers from the office. I couldn't say from whom. I was paid a weekly salary of $ 14 that included the use of the motorcycle. There was no set time to deliver the papers; I was to start when the papers were ready, generally between three and four o'clock in the afternoon. It was an evening paper. I never had any conversation with Mr. Westergran about complaints. No complaints had come in concerning the delivery of the paper. My arrangement with Champ Rice and how I happened to go to work was he had hurt his leg and couldn't ride the machine, so he sold me the machine and gave me the route and it was Champ who talked to the officials of the paper about it. I am not working for the paper now. I worked about four or five months. I had been working about a week prior to January 6, 1934. Al Westergran settled up with me when I got through work. I stopped because I didn't have any transportation. There were other boys working about the same time I did. There were about 23 or 24 routes. Two of us used motorcycles. I carried the papers in regular saddlebags on the back of the motorcycle. I think about 150 pounds. I made deliveries all along the road between the towns and stopped in the Post Offices in the towns and delivered a regular sack of mail, papers it was. When I went to work nothing was said about how I was to work, the only way I knew how it was decided or how I was going to know was through the office officials, I guess."

(Cross-examination.)

"The motorcycle was my property and I paid for the gasoline. The Times did not instruct me where to purchase the gasoline. I purchased the tires and repairs that were necessary on the motorcycle. The Times did not tell me when or how to do that and never instructed me as to the method of transportation that I must have. I did not use a motorcycle the entire time I worked. I used my brother's car. I did not consult any official of the Times with regard to using the automobile. I supplied the gasoline, tires, and repairs for it and the Times did not instruct me where to get any of those articles or when or how to get them. I have had my brother substitute for me on this route and I paid him. I did not consult the Times...