Brabham v. Southern Asphalt Haulers, Inc.

• Decision Date: 09 June 1953
• Docket Number: No. 16752,16752
• Citation: 76 S.E.2d 301,223 S.C. 421
• Court: South Carolina Supreme Court
• Parties: BRABHAM v. SOUTHERN ASPHALT HAULERS, Inc. et al.

Page 301

76 S.E.2d 301

223 S.C. 421

BRABHAM v. SOUTHERN ASPHALT HAULERS, Inc. et al.

No. 16752.

Supreme Court of South Carolina.

June 9, 1953.

Hope & Willcox, Charleston, for appellant.

Legare & Hare and G. M. Howe, Jr., Charleston, for respondent.

TAYLOR, Justice.

This appeal arise out of an action brought in the Court of Common Pleas for Charleston County for injuries alleged to have been sustained by the plaintiff when the panel truck in which she was riding was alleged to have been forced from the highway into a concrete bridge in Williamsburg County, South Carolina, April 8, 1951.

Southern Asphalt Haulers, Inc., served first, duly answered, setting forth a general denial and further alleged that the tractor and trailer involved was at the time operated by Infinger Transportation Company, Inc., under a lease agreement and was therefore under the direction and control of the said Infinger Transportation Company, Inc., its agent and servant, the driver. Thereafter, plaintiff successfully moved for an order making Infinger Transportation Company, Inc., a party defendant and for permission to amend her complaint accordingly. Both parties were thereafter served with the amended complaint and both defendants filed answers denying the material allegations of the complaint and setting forth defenses of contributory negligence and contributory willfulness and each denied that the driver of the tractor and trailer was its agent and servant at the time of the collision.

The case came on for trial before the Honorable James B. Pruitt and a jury in Charleston County in March, 1952, which resulted in a verdict for $12,500 actual damages against the appellant, Infinger Transportation Company, Inc., alone, who seasonably moved for a new trial upon the minutes and judgment non obstante veredicto; such motions were denied by the presiding Judge in an order filed May 21, 1952, and from this order Infinger Transportation Company, Inc., appeals upon exceptions which present two questions:

'1. Could it be reasonably inferred from all the evidence that the driver of the defendant tractor was an agent or servant or under the control of the Infinger Transportation Company?

'2. Was the verdict for $12,500.00 actual damages, excessive in view of the injuries to the plaintiff properly attributable to the accident?'

The record discloses that the appellant had previously successfully bid for and been awarded a contract to transport asphalt for the ESSO Standard Oil Company from Charleston, South Carolina, to Durham, North Carolina; that appellant did not have sufficient equipment to transport these asphalt products and entered into a lease agreement with the Southern Asphalt Haulers, Inc., whereby equipment of the latter was to be used in the transportation of these products under the I. C. C. Rights held by Infinger Transportation Company, Inc. Under this lease, the drivers furnished with the equipment, would be under the complete direction, control and supervision of the appellant while so operating and appellant would pay all drivers wages, social security taxes, workmen's compensation, etc.; all drivers logs and delivery tickets would be mailed to appellant daily; all billing and collecting for the operation of the equipment was to be done by appellant at the end of each week who would then remit to Southern Asphalt Haulers, Inc., such amounts as were due it at the rate published in the appellant's motor freight tariff, less the drivers' wages and other amounts to be paid by appellant and two per cent for bookkeeping services. The Southern Asphalt Haulers, Inc., paid for all gasoline, oil, tires, repairs, license tax, upkeep and maintenance of the leased equipment. When such equipment was operated under the lease agreement, placards were displayed to the following effect: 'Leased by Infinger Transportation Company, Inc., I. C. C. No. MF-109-8 91.' The lease agreement also carried therein the number of tractors and trailers together with the names of the drivers, but Mrs. Infinger, President of the appellant, testified that this proved impractical, that at times this equipment would be in need of repair and out of operation; therefore, this portion of the master lease had not been complied with for some time and on this occasion she was not aware of just who the drivers were but that she had the right of control over such drivers and equipment as this was a requirement when she operated under her I. C. C. rights. Two trucks had made the trip on this date to Durham and the drivers testified that such trips were made in behalf of the appellant and that placards, heretofore described, showing such information were prominently displayed and both testified that they knew and were aware that they were subject to and acting under the direction and control of the Infinger Transportation Company, Inc., at the time. The shipping orders and delivery tickets which were received into the evidence support this and the testimony of other witnesses to this effect.

In Brownlee v. Charleston Motor Express Co., 189 S.C. 204, 200 S.E. 819, 824, this Court stated:

"* * * It is well settled that one who is the general servant of another may be loaned or hired by his master to another for some special service so as to become, as to that service, the servant of such third person, the test being whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the person to whom he is loaned or hired. * * *' 18 R.C.L. 493, Section 3.

"* * * In the case of an oral contract, if there is no material dispute in the testimony, whether the employee is an independent contractor may present a question for the Court; but, where the evidence is conflicting, or where different inferences may be drawn from the testimony concerning the oral contract, the matter is one for the jury to determine.' 14 R.C.L. 79, Section 16.' See also American Fidelity and Casualty Co. of Richmond, Virginia v. Zurich General Accident and Liability Ins. Co., D.C., 70 F.Supp. 613; Standard Oil Company v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480.

Mrs. Mabel Infinger, President of the appellant, Infinger Transportation Co., Inc., was called as a witness for the plaintiff and she testified in part as follows:

'Q. On April 6th, 1951, your company had leased from the Southern Asphalt Haulers, Incorporated, a trailmobile trailer and a White tractor truck, which bore South Carolina License No. 93161, in order to haul certain asphalt products to Durham, North Carolina; that's correct, is it not? A. That's right.

'Q. And the agreement or lease which you had with the Southern Asphalt Haulers Company, Incorporated, for this leased equipment, did it involve the trip to Durham and return? A. That's correct.

'Q. And the return trip from Durham was upon the business and under the control of the Infinger Transportation Company? A. That's right.' and on cross-examination, she testified as follows:

'Q. Now, your company had Interstate Commerce Commission authority to operate between South Carolina and North Carolina? A. That's right.

'Q. And Southern Asphalt Haulers, of course, did not. That's correct, is it not? They had authority to operate only in the State of South Carolina. A. That's right.

'Q. And when they operated under this lease arrangement between you, they had to carry signs or placards, or something else, showing that the equipment was leased to Infinger Transportation Company, Incorporated, with your Interstate Commission certificate No. M. C., whatever it was, or M. F., I think it was. A. That's right.

'Q. And under the Interstate Commerce regulations, you had to be in full control of that movement and of that driver; wasn't that correct? This fully complied with the Interstate Commerce regulations. A. That's right.

'Q. So that, when the trip went from South Carolina to North Carolina, it had to be your trip, didn't it? A. That's right.

'Q. And this particular trip was handled in accordance with the terms and agreements that I have mentioned to you. A. That's right.

'Q. You received the drivers' log, upon...