Blessing v. Pittman

• Citation: 251 P.2d 243,70 Wyo. 416
• Decision Date: 02 December 1952
• Docket Number: No. 2544,2544
• Parties: BLESSING et al. v. PITTMAN.
• Court: United States State Supreme Court of Wyoming

Page 243

251 P.2d 243

70 Wyo. 416

BLESSING et al. v. PITTMAN.

No. 2544.

Supreme Court of Wyoming.

Dec. 2, 1952.

Edward E. Murane, R. R. Bostwick, Casper, for appellant.

Edward S. Halsey, Newcastle, Robert A. Burgess, Casper, for respondents.

BLUME, Chief Justice.

This case involves the well known 'borrowed servant' doctrine. The plaintiff Blessing was the owner of a Chevrolet truck equipped for hauling animals. The plaintiff Plumb was the owner of some race horses in question herein. In the evening of August 16, 1948, after dark, the driver of the Chevrolet truck hauling the race horses was traveling westward along Thirteenth Street in the city of Casper. The street was dark and the driver of the Chevrolet truck was blinded by the glare of a car traveling eastward, so he ran into the back of a carnival or circus wagon, also called a trailer, loaded with carnival paraphernalia, belonging to the John R. Ward Shows which was standing still on the street and was without any lights. The trailer was being pulled or hauled by a truck belonging to the defendant Pittman. The driver was one Dennis Rush, who was in the general employ of Pittman. The truck and trailer had stopped in the street for the reason that the hook-up between the truck and the trailer had become loose. The Chevrolet truck of Blessing was practically demolished and some of the race horses were so injured as to become practically worthless. The plaintiffs brought action against Pittman, doing business as the Pittman Transportation Company, for the damages to them thus caused. The defendant filed an answer denying liability and also an affirmative defense of contributory negligence. This affirmative defense has not been argued, and is waived. The case was tried to a jury. They returned the verdict of $2,000 in favor of Blessing and a verdict of $4,500 in favor of Plumb. The court reduced the amount due to Plumb to $3,245, to conform, as counsel for defendant say, to the maximum damages proven in the course of the trial. After the plaintiff had rested and again after all the evidence was in, the defendant moved for a directed verdict in his favor. Both motions were denied. The defendant also filed a motion for judgment in his favor notwithstanding the verdict of the jury. That motion, too, was overruled. Judgment on the verdict, with the amount reduced as above mentioned was accordingly entered in favor of the plaintiffs and the defendant has appealed.

1. It is contended by counsel for appellant that Dennis Rush, who was in the general employ of Pittman, was, together with a truck, hired out to the Ward Shows and was controlled by its men, so that in the particular work done by Rush in hauling the carnival trailer, he was not in the employ of Pittman but the employee of the Ward Shows. The state among other things: 'Appellant relinquished all control, direction and supervision of the trucks and their drivers to the John R. Ward Shows for the purpose of moving John R. Ward Shows' equipment from the Burlington Railroad Siding in Casper to the Central Wyoming Fair Grounds * * * Appellant's equipment was under the exclusive control and direction and supervision of the John R. Ward Shows * * * Under the lease agreement, they (the drivers) were to work under the direction and supervision of the John R. Ward Shows' foreman. * * * At all times in the movement from the railroad siding to the Fair Grounds and return, they were under the direction and control of the carnival people. There was no supervision of this move in the hands of the Appellant. The Appellant contracted to lease the trucks and drivers and to do whatever work was assigned to them under the direction of the lessee.' Whether this contention is justified must be tested by the testimony in the case, which is comparatively meager, and is in substance as follows: Pittman was a trucking contractor. The carnival, circus or show people wanted four trucks to have their circus or carnival wagons, also called trailers, hauled from the siding of the depot of the Burlington Railroad Company in Casper to the Fair Grounds about a mile and a half west of Casper. Pittman was to furnish these trucks with driver and was to receive $7 per hour for the use thereof. One of these drivers was Dennis Rush, the one involved in the collision herein, who was in the general employ of Pittman before and 'on or about' August, 16, 1948, the day of the collision, and whom Pittman paid, according to Pittman's own testimony. The drivers were to report at the siding at the Burlington Depot to get these wagons or trailers. They did so. The carnival men told the drivers or gave signals as to what trailer was to be moved. These trailers were then hooked on to the trucks by the Ward Shows' men and were unhooked by the same men when the truck and trailer arrived at the Fair Grounds. On the trip there, the driver was accompanied by some of the carnival men. One John Dalgarno testified that he was Pittman's foreman at that time--which was denied by Pittman[70 Wyo. 424] --and he was employed to keep the trucks rolling so that the drivers would not stop for coffee and 'horse' around. He was paid for his services by the show people and he collected the amount due Pittman and turned the money over to him. Pittman knew of the collision herein within about half an hour and saw John Dalgarno, and the inference may be drawn that he told the latter to investigate the collision. In any event, Dalgarno took one of Pittman's trucks for the purpose of doing so. He further testified: 'Q. And, as I understand your testimony on direct examination, Mr. Dalgarno, the control of the trucks and the drivers and even your control were under Mr. Ward or the Ward Shows or their foremen? A. That's right, they told us what to do and we done it. They (the Ward men) told the drivers where to take them (the trailers). Q. Did their control extend to how the trucks should be driven, what speed? A. No.' The Pittman truck was equipped with all the lights required by statute. The trailer involved herein had no lights whatever.

The accident herein, as heretofore stated, happened after dark and no lights were on the carnival wagon or trailer of the John R. Ward Shows in question here. It is made a misdemeanor to drive or move such trailers without proper lights after dark. See §§ 60-601, 60-602, W.C.S.1945. Dennis Rush, the driver of the truck which moved the trailer in question herein, violated that statute when he moved the trailer during the evening of August 16, 1948, and was personally liable for the damages proximately caused by reason thereof. And so was the owner of the Ward Shows, who permitted and asked the moving of the trailer in violation of the statute. So the question remaining herein is as to whether Pittman also was liable for the damages under the rule of respondent superior by reason of the fact that Dennis Rush was in his employment. The subject is considered in 57 C.J.S. under Master and Servant, § 566; 60 C.J.S. under Motor Vehicles, § 436(c); 35 Am.Jur. § 578, p. 1012; 5 Am.Jur. §§ 384-388, pp. 722-25; a lengthy annotation is contained in 17 A.L.R.2d p. 1388 et seq. We considered the point to some extent in the case of Phelps v. Woodward Const. Co., 66 Wyo. 33, 204 P.2d 179. The case of Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189, does not involve the 'borrowed servant' doctrine, and is not sufficiently in point herein.

It has been said that the law on the subject before us is chaotic and that respectable authority for almost any position can be found. Nepstad v. Lambert, 235 Minn. 1, 50 N.W.2d 614, 620. We think, however, that ever since the time of the decision in Quarman v. Burnett, 6 M. & W. 499, 151 English Reprint 509, decided in 1840, there has not been too much conflict in cases in which the facts were substantially those of the case at bar. The English case was decided before the advent of the motor vehicle, but as stated in Lowell v. Harris, 24 Cal.App.2d 70, 74 P.2d 551, 556: 'There has been no change in the fundamental legal principle since the 'horse-and-buggy days' when a team was rented with its driver.'

As a matter of public policy and economic requirements a master is liable for damages caused by the negligence of his servant within the scope of the latter's employment. See Stockwell v. Morris, supra. At the same time, it has long been recognized that a general employer may hire or loan his servant to another for some special service so that he may become the exclusive servant of such other for such special service. Restatement of the Laws of Agency, § 227. Whether that is true in a particular case depends on the circumstances. Most of the courts hold that the test is as to who controls the servant, or rather who has the right of control. However, the term is somewhat vague. As pointed out in Dippel v. Juliano, 152 Md. 694, 137 A. 514, 516: 'The only difficulty about the rule, and it is a real difficulty, is to determine what is meant by 'control.' * * * the difficulty arises in attempting to define the extent or degree of dominion necessary to constitute the 'control' which the borrower must have over a servant loaned to him before he becomes responsible for his acts'. This difficulty has been pointed out in a number of other cases. Hence the Supreme Court of Montana, in the case of Devaney v. Lawler Corp., 101 Mont. 579, 56 P.2d 746, 749, was not quite satisfied with the rule, and came to the conclusion that in the final analysis the test is: 'In whose business was the servant engaged?' stating among other things: 'It may be fairly said that every case presents facts peculiar to itself. Different factors and elements tending to show the power of control in the general or special employer are presented in practically every case dealing with the subject. This perhaps explains to a great extent the seeming inconsistency and conflict among the decided cases. In the final analysis, however, the authorities are...