Craige v. Austin Powder Co.
| Decision Date | 06 August 1937 |
| Docket Number | No. 4183.,4183. |
| Citation | 91 F.2d 664 |
| Parties | CRAIGE v. AUSTIN POWDER CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Thornton G. Berry, Jr., and D. J. F. Strother, both of Welch, W. Va., for appellant.
Graham Sale, of Welch, W. Va. (Sale, St. Clair & Sale, of Welch, W. Va., on the brief), for appellee.
Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge.
A. W. Craige, the plaintiff in the District Court, was seriously injured in a collision between an automobile sedan which he was driving, and an automobile truck which he alleged was being operated by agents and employees of the Austin Powder Company, the defendant. The evidence showed that at the time of the accident the truck was actually being driven by Virgil Mills, an employee of Kern Caudill, who owned the truck, and the District Judge being of the opinion that the powder company had no liability under the circumstances, directed a verdict in its favor. The question to be decided is whether under the view of the facts most favorable to the plaintiff, such a relationship existed between the truck driver and the powder company as to make it responsible for his negligence.
The powder company, which seems to have had headquarters at Cleveland, Ohio, sold explosives throughout the coal fields of Southern West Virginia, and for this purpose maintained a storage warehouse for its goods at Williamson, W. Va. It employed a salesman resident in the town and rented for him office space in the establishment of the Caudill Transfer Company, under which name Caudill conducted a transfer business. The powder company used the same telephone as the transfer company and distributed calendars in the area bearing the name of its sales representative and stating that the transfer company made its local deliveries. The arrangement for the delivery of the goods was that Caudill should make deliveries to the trade supplied by the powder company from its Williamson warehouse and should be paid for his services at a specified rate per hundredweight per mile, as set out in a written schedule. Caudill owned and controlled the trucks used in the delivery; paid for repairs to the vehicles and for the gas and oil consumed; hired and paid the drivers; assigned them to particular trucks on particular jobs; directed their actions and regulated their hours of work. The powder company exercised no control over the deliveries or the actions of the drivers, but merely designated through its sales representative the goods to be delivered and the persons to whom delivery should be made. Caudill also made deliveries for two merchants dealing in meats and meat products, and when requested, would transfer merchandise for other people, although he did not advertise for business generally and had not complied with the statutory regulations governing persons engaged in the general transfer business within the state.
In addition there was evidence, which the plaintiff particularly emphasizes, showing that in the absence from the office of the local salesman of the powder company, telephone calls for him were received by Caudill; that in the absence from the warehouse of the employees of the powder company,...
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...in which under dissimilar circumstances this court found the relationship of independent contractor to exist, see Craige v. Austin Powder Co., 4 Cir., 91 F.2d 664; P. F. Collier & Son Distributing Corp. v. Drinkwater, 4 Cir., 81 F.2d 200. It is suggested, however, in accordance with a few o......
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