Ash v. Century Lumber Co.

• Decision Date: 18 December 1911
• Parties: ASH v. CENTURY LUMBER CO.
• Court: Iowa Supreme Court

153 Iowa 523

133 N.W. 888

ASH

v.CENTURY LUMBER CO.

Supreme Court of Iowa.

Dec. 18, 1911.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action for damages resulted in a directed verdict for defendant. Judgment was entered thereon. The plaintiff appeals. Affirmed.Thomas A. Cheshire, for appellant.

Carr, Carr & Evans and O. M. Brockett, for appellee.

LADD, J.

[1] One R. L. Cruse had loaded a wagon with two-inch plank, a foot wide and 30 long, and had driven along the east side of a railroad car with his team toward the south. The wagon reach had been lengthened, but the planks extended over the back bolster about 13 feet. The lines extended to the rear hub and were laid on the ground east of the wagon and the outside tug unhooked. The front end of the wagon was opposite the car door. Employés of defendant assisted Cruse in removing the lumber from the wagon into the car. In doing this, Cruse stood at the rear of the wagon, lifted the end of a plank so as to place it on the east hind wheel, and, by bearing down and swinging out, lifted the other end so as to clear into the doorway of the car. One man then seized the other end of the plank and drew it in through an opening at the south end of the car until the other could take the plank through the doorway. Cruse had placed a plank on the wheel and swung the end over, when it caught in the edge or jamb of the car door frame. According to his story: “This happened because I suppose I misjudged my distance in raising it and did not raise it high enough at the south end. It caught about midway up from the door. At that time, there was a man standing at the car door, and he could have reached it. When it got caught, I attempted to raise it up by bearing the north end of it down. While I was doing this, it broke loose from the door, fell, and struck the west horse.” The team immediately started to run, and, after they had gone a little ways, the hind wheel caught on a post and swung the team around, and at the same time the lumber slid off, striking the plaintiff, who was in the street, and throwing him upon the pavement, causing serious injuries.

It is alleged that Cruse and the other employés were negligent: (1) In that they failed to tie, secure, or unhitch the team from the wagon; (2) that Cruse was negligent in that he did not draw the plank far enough back so as to avoid hitting the car and prevent it from falling; and (3) that the employés in the car were negligent in failing to take hold of the plank and prevent it from falling on the horse.

The ruling on the first two grounds turns on the issue as to whether Cruse, in handling the team, was the servant of defendant, for he was not shown to have been negligent in the manner of unloading the plank, and, if guilty of any fault, this was in allowing the team to stand without hitching, or where, in event of a plank falling, they would be likely to be struck and frightened thereby. Was there sufficient evidence to carry the case to the jury on either of these issues? This necessarily depends on whether, in the handling of the team, he was the servant and under the control of defendant. The evidence disclosed that defendant owned the wagon, but that the team and harness belonged to Mrs. W. Wright. Long prior to the accident, her son had inquired of defendant's foreman if he could use another team. The foreman answered that he could, and asked whose it was, and, being told that it belonged to Mrs. Wright, and that it was a good team, directed him “to send him on down to work.” One Mason came with the team in the morning and hauled lumber with it several months. He then arranged with Cruse to take his place, and after that Cruse drove the team, from July 18, 1907, until long after the accident, which occurred in May, 1908. The arrangement between Mrs. Wright's son and Mason was that he receive one half the earnings and Mrs. Wright the other half, and, without any conversation concerning the matter, she and Cruse divided the earnings in the same way. Defendant's bookkeeper inquired of her, when each began, whether payment should be made to her or to the driver, and she directed payment to the latter, as she trusted him. Compensation was made at the end of each week at the rate of $3.50 per day. According to Mrs. Wright's testimony, “He took the team as he pleased, as if it was his own, and collected for it.” The horses were kept in Mrs. Wright's stable most of the time Mason drove them and all of the time Cruse did so. She furnished the feed and paid for shoeing. Cruse cared for and fed the horses. She never had anything to say about where Cruse went, nor did she “exercise any control over him in any way or direct his movements.” She had nothing to do with the bargain with the defendant save as mentioned. When Cruse began work, the defendant's foreman inquired whether he was going to drive the team, and, on being told that he was, gave him a written order for a load of lumber, and where to take it, and this was the uniform practice while he remained there. Ordinarily, a laborer employed by the company helped him to load up. Upon delivering, he had the ticket signed by the recipient and returned it to the office.

The company seems to have had nothing to do with the way Cruse cared for or handled the team. The employment at the Century Lumber Company was somewhat irregular, and he was sent occasionally to do hauling for the Charles Weitz Sons, contractors, the foreman directing him so to do, but he was paid always by defendant. If Charles Weitz Sons desired the team to haul, after Cruse had quit for the day, they would telephone at the instance of the foreman to Mrs. Wright, and she would tell Cruse what was wanted. He did not drive the same team all the time, as Mrs. Wright had five horses, and he and the driver of the other team, who was her son, sometimes changed teams, and, during the winter, he teamed considerably for others than the defendant and the Charles Weitz Sons. According to his testimony, neither the Century Lumber Company nor Charles Weitz Sons had anything to do with the care or handling of the team, and Charles Weitz, a director of defendant, testified that the yard foreman “used his judgment which team shall take this order or that order, and the directions are put on there (paper) where to take it. As to how to drive the team, he don't--Sometimes he will direct them which road if he knows the best place to go. Q. Has he any instructions or any authority to tell any teamster how to take care of his team? What he shall do to make the work and use of his team safe? Whether he shall curry it or not, or how he shall handle his team? A. No, sir. Q. Does he, to your knowledge of it, exercise any authority in the way of instructing any of the teamsters with respect to that? A. Not as we know of. Q. Has he any authority, or does he exercise any to your knowledge, to do anything with the teamsters except to tell them what loads to haul and where to take them? A. That is as far as he goes, because the drivers would generally tell him where to get off at if he went to dictating to him as to how to handle his team.” After testifying that the defendant owned some teams and selected the drivers of them and did not select drivers of teams owned by others, he was then asked if to his knowledge the officers or employés of defendant “ever exercise any authority over the drivers of teams not owned by the company. A. No, sir. Q. By way of telling them how they should drive their teams, or how they should secure them or care for them in their work? A. No, sir. Q. Did any officer of the company or any representative of the company have any authority from the company to give such instructions or attempt to exercise any such control or interfere in any way with the drivers of teams not owned by the company, except to tell them what material to get and where to get it and where to take it to? A. No, sir. Q. That is true with reference to Cruse and all of those men, is it? A. Yes, sir; that includes them all.”

The facts have been recited in detail because of the paucity of direct evidence relating to the employment of the team and of the driver. The relation of the parties must be determined by inferences to be drawn from these facts. Doubtless an intelligent teamster in a retail lumber yard readily understands from slips indicating the material and destination what is required of him without being told more explicitly. So it may have been unnecessary for the owner of the team to pursue the driver employed by him with instructions. Mason arranged with Mrs. Wright's son to drive and care for her team of horses; she to furnish harness, feed, and bear the expense of shoeing, he to care for and drive the team, and each to receive one-half of what he with it earned. Cruse merely stepped into and took Mason's place. The only restriction on either side from dividing the earnings was that implied by law, i. e., that they exercise ordinary care in handling and caring for the team, and in this respect both were responsible to Mrs. Wright.

[2] It is well settled that a servant may be employed generally for one person and at the same time in a particular capacity for another. This occurs whenever the general employer engages his employé to work for a third person, and whether the employé is the servant of the one or the other in the doing of any particular act depends on which has the right to direct or control him in its performance. A man may engage to work with his own team for another without yielding to that other the control or management of his team, or he may so hire himself and team to the other that the latter shall be in control of both. Now, it is not very material whether Cruse be deemed to have been employed by Mrs. Wright as driver of her team or to work with the team as though it were his own and share the profits, if, in either event, he retained the authority to handle and control...