Pittsburgh Valve Foundry & Construction Co. v. Gallagher

• Decision Date: 08 May 1929
• Docket Number: No. 5145.,5145.
• Citation: 32 F.2d 436
• Parties: PITTSBURGH VALVE FOUNDRY & CONSTRUCTION CO. v. GALLAGHER.
• Court: U.S. Court of Appeals — Sixth Circuit

32 F.2d 436 (1929)

PITTSBURGH VALVE FOUNDRY & CONSTRUCTION CO. v. GALLAGHER.

No. 5145.

Circuit Court of Appeals, Sixth Circuit.

May 8, 1929.

J. R. Kistner and James P. Wood, both of Cleveland, Ohio (Tolles, Hogsett & Ginnall of Cleveland, Ohio, on the brief), for appellant.

Charles Koonee, Jr., of Youngstown, Ohio, for appellee.

Before HICKS, MACK, and HICKENLOOPER, Circuit Judges.

HICKENLOOPER, Circuit Judge.

The appellant, defendant below and hereinafter referred to as defendant, was engaged in the installation of certain equipment at the plant of the Florida Light & Power Company at Dania, Fla. Prior to the time in question the defendant had been similarly engaged at Sanford, Fla. In order to assure proper performance of these contracts, a certain part of the labor organization was brought from Pittsburgh, where defendant's home office was located; the defendant agreeing to defray transportation expenses from Pittsburgh to Florida and to make allowance to the employee for living expenses in addition to the normal wages earned. The plaintiff below was one of the employees of the defendant so taken to Florida.

At the beginning of the Dania job it was found that no living facilities were available in the immediate neighborhood of the work and that plaintiff and others would be required to lodge at Ft. Lauderdale, Fla., about 10 miles distant. There is substantial evidence to support the finding of the jury that in view of this situation defendant entered into an express contract with plaintiff to provide transportation facilities between Ft. Lauderdale and the power plant under construction; that the hours of work for the men were from 7 o'clock in the morning until 5:30 o'clock in the evening, compensation upon an hourly basis commencing upon arrival at the plant and ceasing with departure from the plant; and that in performance of its contract with plaintiff, defendant entered into an agreement with one Anderson, also a laborer upon the job and the owner of his own automobile, to transport the plaintiff and other workmen from Ft. Lauderdale to the plant in the morning and from the plant to Ft. Lauderdale in the evening at an agreed compensation. For such transportation purposes two automobiles were thus provided. The compensation was paid by defendant directly to the operators of the automobiles. No bus lines, traction cars, or railroads were available to the employees for such journeys, and thus no choice of means of transportation was afforded them.

On November 15, 1926, plaintiff started to work from Ft. Lauderdale in the automobile operated by Anderson. Through the negligence of Anderson a collision occurred between his automobile and that of another user of the road, in which collision plaintiff was seriously injured. Plaintiff brought action against the defendant claiming damages for breach of the alleged contract to furnish "safe" transportation. Defendant answered denying that it had agreed to furnish plaintiff safe transportation at its cost and expense and that it had paid Anderson or any other person for transporting plaintiff. Defendant admitted the employment of plaintiff and the happening of the accident, but denied each and every other allegation in the petition contained.

At the conclusion of plaintiff's testimony the defendant moved for a directed verdict, which motion was renewed at the close of all the evidence. These motions were overruled and the cause submitted to the jury upon the issues whether a contract for transportation was in fact made between plaintiff and defendant and whether Anderson was employed by the defendant to furnish transportation pursuant to such contract, and if so whether he was negligent in the operation of the automobile. The court charged the jury that if such contracts were made by defendant with plaintiff and Anderson the defendant would be charged with any lack of ordinary care on the part of Anderson, but that the burden was upon the plaintiff to prove the making of both contracts and the failure of Anderson to use ordinary care. The trial resulted in a verdict and judgment for plaintiff.

Before the jury retired certain exceptions to the charge, general in their nature, were taken by defendant, but no specific requests for instructions were made; the exceptions most pertinent to the argument now presented being that "the jury had not been instructed as to the relationship of master and servant" and the exception "especially to that part of the charge defining the duty of the defendant to use ordinary care to transport plaintiff, rather than the duty to use ordinary care in the selection of its agents." The overruling of defendant's motion at the conclusion of plaintiff's evidence forms the first assignment of error. The overruling of such motion at the conclusion of all evidence is not assigned as error at all, although exception was noted at the trial.

It is therefore difficult to determine precisely what questions of error are raised by this record in which counsel have been so careless in properly preserving questions of alleged error for presentation to the appellate court. Counsel for appellant argues that the evidence, in its aspect most favorable to plaintiff, unequivocally disclosed that Anderson, the driver of the automobile, was an independent contractor for whose negligence the defendant was not responsible or, if this position be not well taken, that Anderson must as a matter of law be deemed a fellow servant of the plaintiff for whose negligence defendant is likewise not responsible, and that the court therefore erred in overruling the motions for a directed verdict. Waiving the irregularities in the preservation of the questions thus presented, we may consider these issues as if properly raised or as if raised by the combined exceptions to the charge and motions for a directed verdict.

Doubtless, having undertaken a contractual obligation to provide transportation, the defendant might have performed this duty through an independent contractor for whose negligence it would in no way have been responsible. Cf. Neelon v. Hirsh & Renner, Inc., 255 Mass. 285, 151 N. E. 302; Gall v. Detroit Journal Co., 191 Mich. 405, 158 N. W. 36, and an exhaustive annotation of the latter case in 19 A. L. R. 1168. Whether or not the relationship was that of master and servant or of employer and independent contractor is to be determined in each case from direct and circumstantial evidence involving the nature and extent of the work to be done; whether compensation is payable upon performance of specified work, or paid as in the nature of wages, even though on a "piecework" basis; whether the details of when, how, and by whom the actual work is to be done are left to the alleged independent contractor, or are controlled by the employer as a part of the contract itself; whether the employer is bound until the completion of the entire work in contemplation, or is at liberty to discharge those doing the work at any time and to employ others; whether the alleged independent contractor is in fact engaged in any distinct business or occupation (such as building, transportation by rail, street car, or bus, general contracting, etc.) in the field in which he contracts; and similar considerations. If there be substantial evidence tending to negative the independent nature of the contract and to establish the personal employment of Anderson by defendant to perform for and on behalf of defendant a contract obligation owing by defendant directly to plaintiff, the court did not err in overruling the motion for a directed verdict.

We are of the opinion that the record contains such substantial evidence. Anderson was not engaged in the collateral business of transportation. The contract must be...