Brinker v. Koenig Coal & Supply Co.

• Decision Date: 09 October 1945
• Docket Number: Nos. 42,43.,s. 42
• Citation: 312 Mich. 534,20 N.W.2d 301
• Court: Michigan Supreme Court
• Parties: BRINKER v. KOENIG COAL & SUPPLY CO. (two cases).

312 Mich. 534

20 N.W.2d 301

BRINKER

v.KOENIG COAL & SUPPLY CO. (two cases).

Nos. 42, 43.

Supreme Court of Michigan.

Oct. 9, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; John V. Brennan, judge.

Suits, consolidated for trial, by Meta Brinker and her husband, Edward Brinker, respectively, against the Koening Coal & Supply Company, for personal injuries to plaintiff wife as the result of being struck by a truck used in delivering coal for defendant and consequential damages to plaintiff husband. Judgments for plaintiffs, and defendant appeals.

Affirmed.

Before the Entire Bench.

Vandeveer & Haggerty, of Detroit (Fred L. Vandeveer, of Detroit, of counsel), for appellant.

Cary & BeGole, of Detroit, for appellees.

BUTZEL, Justice.

Meta Brinker was struck and severely injured by a coal truck operated by John A. Cowans, who was delivering coal for Koenig Coal & Supply Company, defendant herein. She brought suit against the latter. Edward Brinker, her husband, also plaintiff, brought suit against the same defendant to recover consequential damages because of his wife's injuries. The suits were consolidated for trial and each plaintiff was awarded a verdictfor a substantial amount by a jury. The judge denied motions by both plaintiffs and defendant to direct verdicts, and also to set aside the verdicts on motions for judgments non obstante. The defendant appeals. The cases are brought here on one record and single briefs. No question is raised on appeal as to the negligence ans amounts of the verdicts. The main question is whether the party who drove the truck was an employee or servant of defendant or, as defendant claims, an independent contractor with whom defendnat made a contract for hauling coal.

Defendant claims that the court should have held from the evidence that defendant entered into an oral contract with the owner to deliver coal on a price per tonnage basis. and that the relationship of independent contractor as to the owner and incidentally the driver of the truck was thus created, and the verdict should have been directed in its favor as a matter of law. Brief review of the facts is necessary.

Defendant, in order to carry on its large coal business, used its own trucks with drivers who were on its payroll, and it also hired privately owned trucks to do hauling and paid for the latter on a tonnage basis of coal delivered with an additional payment in case the coal would have to be hauled to a proper receptacle or bins when it reached the premises of customers. Naturally its contract was made with the owners of the trucks. A separate and distinct record was kept as to carriers who owned their own trucks and furnished the drivers. The latter were called by defendant on some of its records and also were referred to by its witnesses as ‘contract carriers.’ This title, while pertinent and possibly of some probative value, does not definitely establish the relationship and does not conclusively show that they were independent contractors. There was no written contract and the facts, not the name ascribed to the carriers, established the relationship. There was no agreement for any term between the parties. Either one could terminate the relationship at any time without notice.

Willie Sawyer, the owner of the truck in question, came to one of defendant's yards and saw its agent in charge who had authority to make the agreement. Sawyer agreed to haul defendant's coal with his truck, to satisfy and be courteous to the customers and to pay for any damage caused. According to defendant's witnesses the truck was to be driven to the designated yard of defendant. There the weight of the truck with the driver was first recorded and the driver was thereupon given a slip as to quantity and kind of coal he was to deliver. The driver went to the silos or receptacles in which the coal was stored and loaded the quantity and quality of coal designated. He then drove back to the scales where the truck, driver and the load were weighed. If the driver had been ordered to deliver a certain tonnage, he first loaded his estimate of the amount of the tonnage ordered, then when the truck with the driver and the coal were weighed, if it were shown that the weight was under or over the tonnage specified, the driver was obliged to either remove some or load additonal coal so as to get the correct amount. The driver was shown the place of delivery on a map. He was not ordered to take any designated route nor given instructions as to speed, et cetera. When he arrived at the place of delivery, he was obliged to see that the coal was properly delivered to the bin or receptacle of the customer. At times he might be able to use a chute from the truck or dump the coal on the ground and use a wheelbarrow to make complete delivery. He was also required to clean up the premises so that no coal was left outside, also to obtain a receipt for coal delivered, and collect the amount of the bill if it is a C.O.D. order, and then return the receipt together with the moneys collected to defendant. He was paid $1.30 per ton for delivery plus a wheeling charge of 50 cents per ton, if the coal had to be wheeled in.

The contract was made with Willie Sawyer. At first he used a different party to drive the truck, but in the early part of October, 1943, Cowans came to defendant's office. He testified as follows: ‘I came in the office, I said I am driving Willie Sawyer's truck, that was the first day I started, he called them up and hold him-the...