Busch v. Seaboard Byproduct Coke Co.

• Decision Date: 20 October 1924
• Docket Number: No. 28.,28.
• Citation: 126 A. 311
• Parties: BUSCH v. SEABOARD BYPRODUCT COKE CO.
• Court: New Jersey Supreme Court

126 A. 311

BUSCH

v. SEABOARD BYPRODUCT COKE CO.

No. 28.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1924.

(Syllabus by the Court.)

Appeal from Supreme Court.

Suit by Goodman Busch against the Seaboard By-Product Coke Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Harlan Besson, of Hoboken, for appellant.

Josiah Stryker, of Newark, for respondent.

PARKER, J. This is a suit for damages on account of personal injury sustained by plaintiff through the alleged negligence of the driver of an auto truck. Plaintiff claimed that said driver was a servant of the respondent corporation; the latter alleged that he was in the employ of an independent contractor. This dispute was the storm center at the trial, and the appeal is mainly based on the action of the trial judge in directing a verdict for defendant on the ground that, as a court question, the evidence showed that the driver was not acting as a servant of defendant, but of an independent contractor. The driver and his general employer had been joined as defendants, but upon the direction as to respondent, plaintiff entered a voluntary nonsuit as to all the other defendants.

The "independent contractor" was a man named Cullum, who at the time of the accident was doing business under the name of Calumet Coke Company. This company had been organized as a corporation, but had as a practical matter ceased to function, and Cullum, who virtually owned it, was using its name. Cullum or his concern, or both, had previously purchased coke in wholesale quantities from the Seaboard Company and sold it at retail mainly in New York City A short time prior to the accident, the Seaboard Company had concluded to do its own selling, but in order to make deliveries, entered into a definite contract with Cullum to deliver by his trucks at stipulated prices per ton, graduated by zones of distance carried. The truck in question carried a sign reading "Koppers Coke," and in smaller letters "Seaboard By-Products Coke Company." The driver was employed and paid by Cullum; so also was his helper Fahrenholz. The truck was under contract of sale to Cullum from an outside vending company for a price of about $6,000, of which only $50 had been paid.

Any inference deducible from the fact that defendant Seaboard Company's name was painted on the truck was subject to be wiped out by uncontradicted evidence. Mahan v. Walker, 97 N. J. Law, 304, 117 Atl. 609. And after a careful examination of the case we fail to discern any substantial contradiction of evidence establishing that the Seaboard Company neither owned the truck nor exercised any control over its operators that could be ascribed to the relation of master and servant. It was absolutely clear that the Seaboard Company did not own the truck, or hire the driver, or pay him, or control him or the operation of the truck in any way beyond loading it at the plant and giving the driver the address of its destination. Thereupon the driver would stop with his load at Cullum's office, outside of the respondent's premises, and Cullum would note on his books the contents of the delivery slip, and later bill the respondent at agreed rates. It is claimed for appellant that respondent's foreman would instruct the driver whether the load should, at its destination, be shot through a chute or carried in. We think the evidence fails to support the claim, but if it does, we deem it valueless as tending to establish control of the driver's actions or indeed anything more than an intimation as to the more convenient method of making delivery.

The evidence also showed without contradiction that Cullum was the party named in a conditional contract of sale as purchaser of the truck; that he kept it in his own garage with others; that he hired the driver and his helper, paid them their wages, and cheeked every trip of the truck at his own office, in pursuance, as we...