Biggins v. Wagner, 7138

• Court: Supreme Court of South Dakota
• Writing for the Court: RUDOLPH, Judge.
• Citation: 245 N.W. 385,60 S.D. 581
• Parties: THOMAS J. BIGGINS, Respondent, v. CARL R. WAGNER, et al., Appellants.
• Docket Number: 7138
• Decision Date: 28 November 1932

60 S.D. 581
245 N.W. 385 85 ALR 776 (1932)
THOMAS J. BIGGINS,
Respondent,
v.
CARL R. WAGNER, et al.,
Appellants.


South Dakota Supreme Court
Appeal from Circuit Court, Minnehaha County, SD
Hon. John T. Medin, Judge
#7138—Affirmed

T.M. Bailey, Bailey & Voorhees, Sioux Falls, SD
Attorneys for Appellants.

George J. Danforth, Cherry, Davenport & Braithwaite, Sioux Falls, SD
Attorneys for Respondent.

Opinion Filed Nov 28, 1932

[60 SD 582]

RUDOLPH, Judge.

The plaintiff, a man seventy-one years old, was struck by a delivery truck driven by the defendant Wagner. The accident occurred on South Main avenue at a point approximately

[60 SD 583]

midway between West Tenth Street and West Ninth Street in the City of Sioux Falls. At this point there is a private driveway crossing the sidewalk on the east side of Main Avenue. As plaintiff was proceeding across this private driveway, the truck driven by the defendant Wagner was turned in from Main Avenue and struck the plaintiff. This action was commenced to recover damages on the theory that the defendant Wagner was negligent, and that his negligence was the proximate cause of the injuries sustained by the plaintiff. The jury returned a verdict in favor of the plaintiff. The trial court entered judgment upon the verdict, and this is an appeal from the judgment and order denying defendants’ motion for a new trial. There is no issue made in this court concerning the sufficiency of the evidence to establish the negligence of Wagner or that his negligence caused the plaintiff’s injuries.

In addition to Wagner, Fantle Bros., Inc., was made a defendant, and the verdict and the judgment makes both defendants equally liable. Both defendants have appealed. The defendant Wagner asserts that the court erred to his prejudice in admitting in evidence a certain liability insurance policy. Wagner further urges that the verdict is excessive. The defendant Fantle Bros., Inc., challenges the judgment upon both grounds urged by the defendant Wagner, and, in addition thereto, urges that, in any event, Fantle Bros., Inc., should not be liable, for the reason that the evidence is insufficient to sustain the judgment against it, in that the evidence discloses that at the time the plaintiff was injured, Wagner was an independent contractor and not a servant or agent of Fantle Bros., Inc.

The complaint in this action alleges that the defendant Wagner was a servant of the defendant Fantle Bros., Inc., and that at the time of the accident, Wagner was acting in the performance of his duties as such servant. The defendant Fantle Bros., Inc., denied that Wagner was its agent or servant. The trial court submitted to the jury the question of whether Wagner was an independent contractor or a servant or agent under an instruction, which was excepted to only on the grounds that the undisputed evidence established that the defendant Wagner was an independent contractor as distinguished from a servant of Fantle Bros., Inc.

[60 SD 584]

A motion for a directed verdict was made on the same grounds contained in the exception to the instruction. The issue thus presented is: Was there sufficient evidence to justify the trial court in submitting the question to the jury? The testimony concerning this issue, as testified to by the defendants Wagner and Benjamin H.P. Fantle, is as follows: The wife of the defendant Wagner was an employee of Fantle Bros., Inc., acting in the capacity of credit manager for that firm, and had been such for several years. Some time prior to August 15, 1927, Mrs. Wagner and Benjamin H.P. Fantle, the vice president of the defendant corporation, had a conversation and, as a result of this conversation, the defendant Wagner started work delivering parcels for the store. Wagner furnished his own truck, kept it in repair, and delivered all of the parcels from the store, except some few parcels which were delivered by errand boys and by another car owned by the store. In order to deliver all of these parcels, it was necessary on occasions for Wagner to have some help. This help he paid for, hired, and discharged as he saw fit. Wagner received $250 a month. The truck which he used in the business had the name “Fantle Bros., Inc.,” painted on each side. The parcels, which he delivered, were left in a certain place in the store where Wagner was allowed to come in and check the records, and, if he approved the records, he assumed responsibilty for the packages, and took them from the store for delivery. The number of trips that Wagner should make in a day, and the route he should take in delivering the parcels, were left to Wagner. Wagner testified that he made deliveries for other persons at various times and received therefor separate compensation. However, upon cross-examination, he could not tell how much work he had done for other people, or for whom, and stated that the only other work he was doing for other people would be as they would come to him and ask him to deliver something. He further testified that, if Fantle Bros., Inc., would ask him to deliver certain parcels ahead of others, he followed any suggestions that were made along this line, and if he were asked what he was doing he would say, “Driving for Fantles.” Prior to the time Wagner commenced his work for Fantle Bros., Inc., Benjamin H.P. Fantle cautioned him to be sure to take liability insurance. Mrs. Wagner, following the time that Mr. Fantle suggested the insurance, applied for and received a policy of liability

[60 SD 585]

insurance covering the car involved in the accident wherein the name of the insured read as follows: “Carl R. Wagner and/or Sadie P. Wagner and/or Fantle Bros., Inc.” The place of business given in the policy was the address of Fantle Bros., Inc. The business of insured was given as that of “department store.” Prior to the time of the accident, Mr. Fantle was advised that this policy had been taken out, and the policy was shown to him by Mrs. Wagner. The policy was offered and received in evidence over the objection of the defendants. The court instructed the jury with reference thereto as follows: “The court admitted this evidence for just one purpose, and one purpose only, which was as to what light it might throw, if any, on whether the relationship between the defendants at the time of the accident was that of master and servant or that of independent contractor. As to all other issues in the case, the court instructs you to dismiss the matter of this insurance entirely from your minds, and in no sense to treat this as a suit against the insurance company, rather than as against the defendants Fantle Bros., Inc., and Wagner.”

From the above statement it is readily seen that the question of liability insurance entering into this case is interwoven with the question of whether or not the evidence sustained the submission to the.jury of the question whether Wagner was a servant or independent contractor. The insurance policy was received on the theory that it might aid the jury in determining the relationship existing between the defendants.

We discuss first the alleged error in connection with the policy of insurance. This court, in the case of O’Connor v. Sioux Falls Motor Co., 906, quoted with approval the following: “The determination of the admissibility of any evidence depends upon whether it tends to prove an issue—whether it is relevant or material; if it is, it cannot be excluded on the ground...