Darner v. Colby

• Decision Date: 14 February 1941
• Docket Number: No. 25818.,25818.
• Citation: 375 Ill. 558,31 N.E.2d 950
• Parties: DARNER et al. v. COLBY et al.
• Court: Illinois Supreme Court

375 Ill. 558

31 N.E.2d 950

DARNER et al.

v.COLBY et al.

No. 25818.

Supreme Court of Illinois.

Feb. 14, 1941.

Action by Maurice Darner, administrator of the estate of Dessie E. Darner, deceased, and another against Nate Colby and another, for the alleged wrongful death of the deceased, wherein the named defendant filed a counterclaim against Edna Darner, and Edna Darner filed a counterclaim against the defendants. Judgments in favor of plaintiff against the Johnson Oil Refining Company, and in favor of Edna Darner on her counterclaim, were reversed by the Appellate Court, 305 Ill.App. 163, 26 N.E.2d 1001, and plaintiff and Edna Darner appeal.

Judgments of the Appellate Court reversed and cause remanded with directions.Appeal from Appellate Court, Second District, on appeal from the Circuit Court, Du Page County; William J. Fulton, Judge.

Alschuler, Putnam, Johnson & Ruddy and Sears, O'Brien & Streit, all of Aurora (Edward F. Streit, of Aurora, of counsel), for appellants.

Hadley & Leren, of Wheaton (Charles W. Hadley, of Wheaton, of counsel), for appellee.

STONE, Justice.

This cause is here on leave granted to review the judgment of the Appellate Court for the Second District reversing a judgment returned in the circuit court of Du Page county, in the sum of $4,000 against appellee the Johnson Oil Refining Company, without remanding the cause; likewise a judment of $75 in favor of appellant Edna Darner. Appellant Maurice Darner, as administrator, brought suit against one Nate Colby and the Johnson Oil Refining Company, a corporation, for wrongful death of Dessie E. Darner, as the result of the collision of an automobile in which she was riding with a truck owned and driven by Colby. Colby filed a counterclaim against Edna Darner, the driver of the automobile in which the deceased was riding, and against appellant administrator, whereupon Edna Darner filed her counterclaim against Colby and the appellee.

Darner, as administrator, charged in his complaint, as did Edna Darner in her counterclaim, that Colby was operating the motor truck involved in the collision, as the agent and servant of appellee the Johnson Oil Refining Company. This was denied and the appellee company averred that it was not the owner of the truck; that Colby was not its agent or servant and that it had no control over him or the truck.

There is little dispute as to what occurred. Whether there was negligence has been settled by the jury and the Appellate Court. The single question for determination here is whether Colby was, at the time of the accident, an employee or agent of the appellee company, or an independent contractor. It is the general rule that the party injured by the negligence of another must seek his remedy against the person who caused the injury. To this rule well-recognized exceptions arise where the relation of master and servant or principal and agent is shown. In those cases, the negligence of the servant or agent is imputable to the master or principal. But it is necessary, if the case be brought within the exception to the general rule, to show that such relationship exists between the person at fault and the one charged with the result of the wrong. Such relationship must exist at the time and in respect of the particular transaction out of which the injury arose. Mosby v. Kimball, 345 Ill. 420, 178 N.E. 66. Whether it exists depends upon the contract between the parties and their relationship as shown by the evidence. Each case must depend upon its own facts. Generally, no one feature of the relation is determinative but all must be construed together. Bristol & Gale Co. v. Industrial Comm., 292 Ill. 16, 126 N.E. 599.

An independent contractor is one who renders service in accordance with the will of the person for whom the work is done, only as to the result of the work and not as to the means by which it is accomplished. Hartley v. Red Ball Transit Co., 344 Ill. 534, 176 N.E. 751;Besse v. Industrial Comm., 336 Ill. 283, 168 N.E. 368;Nelson Bros. & Co. v. Industrial Comm., 330 Ill. 27, 161 N.E. 113. Where one undertakes to produce a given result without being in any way controlled as to the method by which he attains it, he is considered an independent contractor rather than an employee. Hartley v. Red Ball Transit Co., supra; Rosenbaum Bros. v. Devine, 271 Ill. 354, 111 N.E. 97. Where the one employed to do the work, in the course of which the injury occurs, is free to exercise his own judgment and discretionas to the means and appliances which he may see proper to employ in so doing, entirely exclusive of the control and direction of the party for whom the work is being done, he is deemed in law an independent contractor. Pioneer Construction Co. v. Hansen, 176 Ill. 100, 52 N.E. 17;Jefferson v. Jameson & Morse Co., 165 Ill. 138, 46 N.E. 272. The right to control the manner of doing the work is of principal importance in the consideration of the question whether the worker is an employee or an independent contractor. Decatur Railway & Light Co. v. Industrial Board, 276 Ill. 472, 114 N.E. 915. The test is in the right to control and not the fact of whether actual interference with the method of doing the work is shown by the evidence. If the person for whom the work is being done retains the right to control the manner in which the work is to be done, the relation of employer and employee exists. Meredosia Levee & Drainage Dist. v. Industrial Comm., 285 Ill. 68, 120 N.E. 516.

The contract between the appellee company and Colby was introduced in evidence. It showed Colby to have been employed by the company as local manager at its bulk station located at Pecatonica, Illinois. The contract was written in the first person and signed by Colby. Its opening clause is as follows: ‘In accepting employment with Johnson Oil Refining Company, hereinafter called Company, as its Local Manager at its bulk station located at Pecatonica, Illinois, I agree to comply with the rules and regulations of the Company hereinafter set forth, and as promulgated from time to time, and I will operate in accordance with said rules and regulations, both as to the sale and delivery of petroleum products and other merchandise entrusted to me by the Company, and in the performance of such other duties as may be required of me by the Company in the course of my employment.’ The contract is designated ‘Conditions of Employment.’ Under it Colby's duties were those of manager of the bulk station of the appellee company which included the delivery of gasoline and oil products to filling stations and other customers, assisting in the installation of gasoline and oil station equipment, and assisting in the work of maintenance of the bulk plant properties. He was accountable to the company for oil, gas and greases which went through the bulk station. He sold none of the products in his own name but in the name of the company, and deposited all funds in a bank in the company's name. He was to pay all operating and miscellaneous expense incurred by him or his employees except freight and drayage on incoming shipments, which appellee company was to pay, except drayage from the local railroad depot to the bulk plant on merchandise stocks. The company was to pay postage, charges for water, gas, electricity, light and power, telephone and the expense of installation of gasoline and oil dispensing equipment within Colby's territory....