Councell v. Douglas

Decision Date04 May 1955
Docket NumberNo. 34229,34229
Citation126 N.E.2d 597,163 Ohio St. 292
Parties, 56 O.O. 262 COUNCELL, Appellee, v. DOUGLAS, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. The relationship of principal and agent or master and servant is distinguished from the relationship of employer and independent contractor by the following test: Did the employer retain control of, or the right to control, the mode and manner of doing the work contracted for? If he did, the relationship is that of principal and agent or master and servant. If he did not but is interested merely in the ultimate result to be accomplished, the relationship is that of employer and independent contractor.

2. The rule of respondeat superior only arises out of the relationship of superior and subordinate and ceases when that relationship ceases to exist; and the reason of it is to be traced to the power of control and direction, which the superior has a right to exercise, and which, for the safety of others, he is bound to exercise, over the acts of his subordinates. (Paragraph four of the syllabus of Clark v. Fry, 8 Ohio St. 358, approved and followed.)

3. Where one employs another to do certain work for him, the mere right reserved by the employer to direct as to the quantity of work to be done, or the condition of the work when completed, is not a right to control the mode or manner of doing the work so as to justify the conclusion that the relationship between the employer and the contractor is either that of principal and agent or master and servant. (Paragraph four of the syllabus in Hughes v. Cincinnati & S. Railway Co., 39 Ohio St. 461, approved and followed.)

4. A person is not liable in tort for the act of another who is not his servant or agent, even where such person has manifested to a third person that such other is his agent or servant, except where there has been some reliance by such third person upon the appearance of a principal and agent or master and servant relationship and then only if a subsequent harm is in some manner induced by that reliance.

5. Where the owner of an automobile arranges with a service station for the servicing of his automobile and at the time of making such arrangements it is agreed that an employee of the station will ride home with him and drive his automobile back to the station for the servicing, and where the owner does drive home and surrenders his car to such employee to be driven back to the station for servicing, the owner will not be responsible for negligence of such station employee in driving his automobile back to the service station.

Plaintiff instituted this action in the Common Pleas Court of Licking County to recover damages from Kenneth Cooksey on account of personal injuries claimed to have been caused by the negligence of Cooksey in the operation of an automobile owned by Hugh Douglas. Subsequently, plaintiff filed an amended petition naming Douglas as an additional party defendant. Douglas demurred to that amended petition on the grounds of misjoinder of parties defendant. That demurrer was sustained. Thereupon, plaintiff elected to proceed solely against Douglas, who will hereinafter be referred to as defendant.

At the trial, the undisputed evidence disclosed that at about 5 p. m. on January 6, 1951, defendant, a resident of Utica, Ohio, drove his automobile to the Pure Oil Service Station in that village to have it lubricated and washed, the oil changed and the tires switched. While making arrangements for this work with Cooksey and Hunter, who were apparently employees at this service station, defendant requested that someone ride home with him and drive his automobile back to the service station for this work. Thereupon, Cooksey rode home with defendant and then undertook to return defendant's automobile to the service station. While doing so, Cooksey collided with a car in which plaintiff was riding.

Defendant's motion for a directed verdict was overruled, the jury returned a verdict for plaintiff against defendant for $3,280.50, defendant's motion for judgment notwithstanding the verdict was overruled, judgment was rendered on the verdict for plaintiff against defendant and defendant's motion for a new trial was overruled.

On appeal to the Court of Appeals, the judgment of the Common Pleas Court was affirmed.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance by this court of defendant's motion to certify the record.

Joseph H. Fitzgibbon, Newark, for appellee.

E. Clark Morrow and L. James Gordon, Newark, for appellant.

TAFT, Judge.

The basic question to be decided on this appeal is whether there was sufficient evidence to justify the jury in finding that Cooksey, at the time of the accident, was operating defendant's automobile as an agent or servant of defendant, or that the relationship at such time between defendant and Cooksey, with respect to the operation of defendant's automobile, was one of principal and agent or of master and servant. If there was such evidence, the judgment of the Court of Appeals must be affirmed, and, if not, that judgment must be reversed and final judgment must be rendered for defendant.

In the opinion by the court in Miller v. Metropolitan Life Ins. Co., 134 Ohio St. 289, 291, 16 N.E.2d 447, 448, it is said:

'The fundamental rule generally recognized is that the doctrine of respondeat superior is applicable to the relation of master and servant or of principal and agent, but not to that of employer and independent contractor. * * *

'The relation of principal and agent or master and servant is distinguished from the relation of employer and independent contractor by the following test: Did the employer retain control, or the right to control, the mode and manner of doing the work contracted for? If he did, the relation is that of principal and agent or master and servant. If he did not but is interested merely in the ultimate result to be accomplished, the relation is that of employer and independent contractor.'

This apparently simple test for ascertaining whether the doctrine of respondeat superior should be applied to a particular relationship has been repeatedly applied by this court. Clark v. Fry, 8 Ohio St. 358, 72 Am.Dec. 590; Pickens & Plummer v. Diecker & Brother, 21 Ohio St. 212, 8 Am.Rep. 55; Hughes v. Cincinnati & S. Railway Co., 39 Ohio St. 461; Braum v. Averdick, 113 Ohio St. 613, 150 N.E. 41; Schickling v. Post Publishing Co., 115 Ohio St. 589, 115 N.E. 143; Kruse v. Revelson, 115 Ohio St. 594, 155 N.E. 137, 55 A.L.R. 289; Klar v. Erie R. Co., 118 Ohio St. 612, 162 N.E. 793; Babbitt v. Say, 120 Ohio St. 177, 165 N.E. 721; Industrial Commission v. McAdow, 126 Ohio St. 198, 184 N.E. 759; Gillum v. Industrial Commission, 141 Ohio St. 373, 48 N.E.2d 234; Bobik v. Industrial Commission, 146 Ohio St. 187, 64 N.E.2d 829; Giovinale v. Republic Steel Corp., 151 Ohio St. 161, 84 N.E.2d 904; Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St. 513, 92 N.E.2d 677, 18 A.L.R.2d 1363; Behner v. Industrial Commission, 154 Ohio St. 433, 94 N.E.2d 403; Senn v. Lackner, 157 Ohio St. 206, 105 N.E.2d 49; Toms v. Delta Savings & Loan Ass'n, 162 Ohio St. 513, 519, 124 N.E.2d 123; Ross v. Burgan, 163 Ohio St. 211, 126 N.E.2d 592.

As stated in paragraph four of the syllabus of Clark v. Fry, supra:

'The rule of respondeat superior, as its terms import, only arises out of the relation of superior and subordinate, is applicable to that relation wherever it exists, as between principal and agent, or master and servant, is coextensive with it, and ceases when that relation ceases to exist; and the reason of it is to be traced to the power of control and direction, which the superior has a right to exercise, and which, for the safety of others he is bound to exercise over the acts of his subordinates.'

However, as is not unusual with respect to rules of law which can be stated in such simple language, difficulties have arisen in applying the foregoing test to the facts of particular cases. Cf. Miller v. Metropolitan Life Ins. Co., supra, with Metropolitan Life Ins. Co. v. Huff, 128 Ohio St. 469, 191 N.E. 761. See Restatement of the Law of Agency, Section 220. This is probably the reason for the apparent conflict between the decision rendered by the majority of the Court of Appeals of the Fifth Appellate District in the instant case and that rendered by the majority of the Court of Appeals of the Fourth Appellate District in Sams v. Hughes, 90 Ohio App. 199, 105 N.E.2d 460.

In Hughes v. Cincinnati & S. Railway Co., supra, the syllabus reads in part:

'2. A corporation organized for the purpose of constructing and operating a railroad * * * may contract with another person for the construction of the whole or any part of the road, without retaining the right to control the mode or manner of doing the work; and in such case the corporation is not liable to third persons for an injury resulting from the carelessness or willful act of the contractor.

'3. But...

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