Brownrigg v. Allvine Dairy Co.

• Decision Date: 11 March 1933
• Docket Number: 31008.
• Citation: 19 P.2d 474,137 Kan. 209
• Parties: BROWNRIGG v. ALLVINE DAIRY CO. et al.
• Court: Kansas Supreme Court

19 P.2d 474

137 Kan. 209

BROWNRIGG v. ALLVINE DAIRY CO. et al.

No. 31008.

Supreme Court of Kansas

March 11, 1933

Syllabus by the Court.

Where dairy company, selling milk at wholesale, permitted distributors to paint company's name, telephone number and milk permit number on distributors' delivery trucks but retained no control over distributors, distributor held "independent contractor" and not "servant"; hence company was not liable for truck driver's negligence.

Where a dairy company sells milk at wholesale to persons owning their own trucks on which they are permitted to paint the name of the dairy company, its telephone number and its milk permit number, and the dairy company retains no control over such persons, does not direct them where to take the milk, and fixes no route or district, but such persons are free to go where they will and to sell the milk to whom they please, the relation between the dairy company and the truck driver is that of contractor and contractee, and not that of master and servant, and, in the event of injury caused by the negligence of the truck driver in the operation of his truck, the dairy company is not liable.

Appeal from District Court, Wyandotte County, Division No. 1; E. L Fischer, Judge.

Action by Thelma Bernice Brownrigg by her father, John T. Brownrigg as next friend, against the Allvine Dairy Company and others. From an adverse judgment, the named defendant appeals.

Judgment reversed, and cause remanded, with instructions.

Where dairy company, selling milk at wholesale, permitted distributors to paint company's name, telephone number, and milk permit number on distributors' delivery trucks, but retained no control over distributors, distributor held "independent contractor" and not "servant"; hence company was not liable for truck driver's negligence.

Arthur J. Stanley and Arthur J. Stanley, Jr., both of Kansas City, for appellant.

D. V. Downs, of Kansas City, for appellee.

THIELE Justice.

This was an action for damages arising from an automobile accident.

The petition alleged facts concerning the accident and that the defendant Carroll, driver of the automobile truck involved, was the employee and agent of the defendant the Allvine Dairy Company. The verified answer of the last-named defendant put the employment and agency in issue. Trial was had, and, after plaintiff rested, the defendants the Allvine Dairy Company and Fred C. Allvine entered their demurrer on the ground that no cause of action had been proved. This demurrer was overruled as to the Allvine Dairy Company, and error is assigned on account of such ruling. Thereafter the trial proceeded, and, after each party had closed, the defendant the Allvine Dairy Company requested a peremptory instruction for a verdict in its favor, which motion was denied, and error is assigned on account of such ruling. The matter was then submitted to the jury, which returned its general verdict in favor of the plaintiff and against the defendants Carroll and the Allvine Dairy Company, and answered special questions submitted. Thereafter the Allvine Dairy Company filed its motions for a new trial and for judgment notwithstanding the verdict, which motions were denied, and error is assigned on account of these rulings by the Allvine Dairy Company.

In connection with appellant's demurrer to plaintiff's evidence, it is urged that there was no evidence that the defendant Carroll was the employee or agent of the appellant but it is contended that such evidence as bore upon the question showed Carroll to be an independent contractor. A summary of plaintiff's evidence shows the Allvine Dairy Company buys milk in Wyandotte and Leavenworth counties and sells same in Kansas City, Kan.; that F. C. Allvine is president and controls the routing of the wholesale routes, but not the retail; that on the sides of the trucks used is the name "The Allvine Dairy Company" and the permit number and telephone number, and that the name of the driver also appears on the doors of the independent trucks; that Carroll owned his own trucks; and that Carroll does not have any route or district, but sells milk wherever he wants to; that the bottles carry the label of the Allvine Dairy Company. Allvine's testimony, which is not disputed, is, in part, as follows: "I have no jurisdiction at all over the retail men. In other words, all we do to them we bottle the milk, and sell it to them, and they pay cash for it and they...