Bowen v. Gradison Construction Company

• Citation: 236 Ky. 270
• Parties: Bowen v. Gradison Construction Company. South v. Same. Owings' Administrator v. Same.
• Decision Date: 19 December 1930
• Court: United States State Supreme Court (Kentucky)

236 Ky. 270

Bowen v. Gradison Construction Company.

South v. Same.

Owings' Administrator v. Same.

Court of Appeals of Kentucky.

Decided October 17, 1930.

As Modified on Denial of Rehearing December 19, 1930.

1. Master and Servant. — Servant may be loaned by his master for some special purpose so as to become, as to that service, servant of party to whom servant is loaned.

This is true even though the servant is selected, paid, and may be discharged by the original employer.

2. Master and Servant. — Test whether master's servant doing special service for third party becomes servant of third party depends on who controls servant while performing special service.

3. Master and Servant. — Right to immediately discharge servant gives complete control as regards determination of whether loaned servant becomes servant of party to whom loaned while performing services for which he was loaned.

4. Master and Servant. — "Independent contractor" is one who is doing his own work in his own way.

5. Automobiles. — Under contract, construction company held to have such control over hired truck as to make company responsible for negligent operation of truck.

The evidence disclosed that under the contract the owner furnished his truck and the driver, oil, gasoline and everything else necessary for operation of truck; that the construction company paid the owner $2.50 an hour for its use; that the owner hired and paid the driver; that the construction company had no right under the contract to discharge driver or put truck under control of driver of company's selection; that the company had the right to send the truck home and terminate contract when they chose; and that the company directed loading, unloading and operation of truck.

6. Appeal and Error. — Finding of trial court on undisputed facts is "finding of law," and is not conclusive on appeal.

7. Appeal and Error. — Objections to instructions could not be considered on appeal, where instructions were not in record.

Appeals from Montgomery Circuit Court.

TURNER & CREAL and M.C. REDWINE for appellants.

W.B. WHITE and ROBERT H. WINN for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER

Reversing.

All three of these suits are the result of one accident, in which Laura Owings was killed, and Bettie Bowen and Macie South were seriously injured. Three trials have been had. Upon the first the trial court directed verdicts for the defendants. An appeal was prosecuted to this court, and the judgment was reversed as to the Gradison Construction Company. See 224 Ky. 427, 6 S.W. (2d) 481, 483. A second trial on January 28, 1929, resulted in the jury failing to agree. On November 12, 1929, all three of these cases were submitted on the law and facts to the court, upon the transcript of the evidence heard at the trial in January, 1929, with this result:

"That each of the petitions in said three cases be, and the same is now, dismissed, and that the defendant, Gradison Construction Company, recover of each of the plaintiffs its costs herein expended in each respective action.

"The plaintiffs in each of the cases aforesaid having moved the Court to state separately herein his findings as to the law of these cases and as to the facts, the Court sustains said motion and findings are as follows:

"The Court finds from the evidence that at the time and place of the accident and injuries in question, Owen Richards, the driver of the truck in question, was not acting under the control of, or under the direction of, or in the employment of the defendant, Gradison Construction Company.

"In view of the foregoing finding of facts the Court finds that as a matter of law the defendant cannot in any event be responsible for the accidents and injuries in question.

"In view of the foregoing findings, the Court is of the opinion that it is unnecessary to determine the other controverted facts herein or to determine the law applicable to same."

Motions and grounds for new trial filed by each of the plaintiffs were overruled, and they appeal.

Many of the facts are stated in the opinion delivered on the former appeal, and they are not here recited, but we will state briefly some of them.

This accident occurred on Saturday, April 24, 1926. The truck involved belonged to James Richards. It was driven by his son, Owen Richards. This truck was hired to the Gradison Construction Company upon these terms:

Richards furnished his truck and the driver, oil, gasoline, and everything else necessary for its operation, and the Gradison Construction Company paid him $2.50 an hour for its use. Richards hired and paid this driver, and Gradison Construction Company had no right under the contract to discharge him or to put upon this truck a driver of their selection, but they had the right to send the truck home and terminate this contract when they chose. The Gradison Construction Company directed the loading, unloading, and operation of this truck.

The questions on this appeal are:

(a) Was there any evidence the injuries sued for resulted from the negligent operation of this truck?

(b) Had the Gradison Construction Company such control over it as made it responsible for that negligence?

The trial court gave a negative answer to question (b), and hence did not answer question (a). We find both questions should be answered in the affirmative. When the Gradison Construction Company made this contract with Richards, it, in effect, said to him: "Your driver shall be our driver and your truck, our truck, so long as we shall both be pleased." The pronoun "our" is used here to refer to the Gradison Construction Company alone, and not to it and James Richards.

In the opinion upon the former appeal we said this, and cited many authorities in support of it:

"And if that company (the Gradison Construction Company) seeks to be relieved on the ground that Owen Richards was the servant of James W. Richards, an independent contractor, or relies upon any other affirmative defense, the burden was upon it to establish that defense."

The Gradison Construction Company has failed by the evidence adduced to sustain this burden.

In Keen v. Keystone Crescent Lumber Co. (Ky.), 118 S.W. 355, these were the facts: One Thacker contracted with the lumber company to furnish his sawmill and a fireman for $100 per month. Thacker employed Shade Keen to fire the boiler, and paid him $1.50 per day. The boiler exploded, killing Keen. His administrator sued the lumber company, and this court held he was the servant of the lumber company.

In Postal T.C. Co. v. Murrell, 180 Ky. 52, 201 S. W. 462, L.R.A. 1918D, 357, we affirmed a judgment against the Postal T.C. Co., and the boy whose negligence caused the injuries was riding his own bicycle.

In the case of Williams v. National Cash Register Co., 157 Ky. 836, 164 S.W. 112, we reversed a judgment for the company and sent the case back for further proceedings, although it was shown the automobile inflicting the injuries belonged to Bert. Alexander, an agent of the company, and was being driven by his chauffeur.

In Waters v. Pioneer Fuel Co., 52 Minn. 474, 55 N. W. 52, 38 Am. St. Rep. 564, a teamster furnishing his own team and wagons and hauling coal by the ton for a particular coal company exclusively was held to be the servant of the coal company, and it to be responsible for injuries resulting from his negligence.

Bon Jellico Coal Co. v. Murphy, 151 Ky. 450, 171 S.W. 160, and Interstate Coal Co. v. Trivett, 155 Ky. 825, 160 S.W. 728, we regard as very much in point. In those cases men were digging coal by the ton, yet they were held not be independent contractors.

The Gradison Construction Company is relying on the authorities below to sustain this judgment, but they do not do so, and we shall point out as briefly as we can the difference between those cases and this one that makes those authorities inapplicable. It places its chief reliance on the case of Berry et al. v. Irwin, 220 Ky. 708, 295 S.W. 1020. There Billiter & Wiley were engaged in the construction of a road from Elizabethtown to Bardstown. They had made with D.H. Smith a contract to get out, crush, and prepare the stone, and with Berry & Kelly they had made a contract to get this stone at the crusher and deliver it to the points on the road, where it was to be put down, at so much per ton. While Berry & Kelly used trucks in that transportation, there was nothing said in the contract about the instrumentalities they should use, and so far as that is concerned they might have used wheelbarrows had they seen fit. Billiter & Wiley had the right to tell them when and where to deliver and dump the stone, and that was all they had.

The construction company contends that case cannot be distinguished from this one, and that the position of Owen Richards in this case is identical with that of Tim Givans in that case. The facts in the two cases make a clear distinction. Berry & Kelly had certain definite work to do. They had a contract to deliver this stone. That was their work; they were independent contractors doing their own work in their own way. They could drive five miles an hour or twenty miles an hour, could haul full loads or half loads, use one-ton trucks or five-ton trucks, or even wheelbarrows, so long as they delivered the stone as and where it was needed. In that case we held Givans was the servant of Berry & Kelly. In this case the Gradison Construction Company hired from Richards his truck and driver, by the hour.

We wish to call attention to some evidence upon which the construction company relies. This is taken from Gradison's testimony:

"Did you have any control over Richard's driver? No, I didn't know who he was.

"Did you hire the driver of that truck? No.

"Did you exercise any control or have the right in your contract to exercise any control over the way the truck should be driven. No."

This is from the testimony of James Richards:

"Who hired Owen Richards to drive the truck? I did...