Delamar & Allison v. Ward
| Decision Date | 06 July 1931 |
| Docket Number | 78 |
| Citation | 41 S.W.2d 760,184 Ark. 82 |
| Parties | DELAMAR & ALLISON v. WARD |
| Court | Arkansas Supreme Court |
Appeal from Nevada Circuit Court; Dexter Bush, Judge; affirmed as to Ward, Jr., and Lewis; modified as to Ward, Sr.
Judgment affirmed.
Frauenthal Sherrill & Johnson, for appellants.
McRae & Tompkins, for appellee.
State highways numbered 4 and 53 cross each other at right angles in Nevada County, and both of them were being improved by spreading gravel on them. While the work of hauling and spreading the gravel was in progress, John Ward, Jr., who was thirty-one years of age, drove a Ford touring car over the point of intersection of these roads. His car had the back seat cut away and the entire top removed so as to make a light truck which he called a "Hoopie." His car truck had only one seat, and seated thereon with him were his father, John Ward, Sr., who was sixty-four years of age, and Henry Lewis, his father-in-law, who was sixty-eight years old.
Between nine and ten o'clock on Saturday morning, October 11, 1930, Buster Westmoreland drove a truck loaded with gravel across the intersection of these roads and a collision occurred with the car driven by Ward, which resulted in a serious injury to John Ward, Jr., and in the death of his father and father-in-law. Suits were brought by Ward, Jr., and by the administrators of the estates of his father and father- in-law to compensate these injuries. These cases were consolidated and tried together.
There was a verdict and judgment for John Ward, Jr., in the sum of $ 5,000. There was a verdict and judgment in the Lewis case for the benefit of the widow in the sum of $ 2,500, but no verdict was returned in favor of the estate for pain and suffering. In the case of Ward, Sr., there was a verdict in favor of his widow in the sum of $ 2,000, and a verdict and judgment for the benefit of his estate in the same amount.
The truck driven by Westmoreland was owned by A. C. and Charles Bratcher, and they were made defendants, but the suit was dismissed as against them before the trial. Delamar & Allison were original defendants, and were sued upon the theory that Westmoreland was their servant at the time of the collision, and that his negligence had caused the collision.
A reversal of these judgments is prayed upon the following grounds: (1) That the relationship of master and servant did not exist between Westmoreland and Delamar & Allison; (2) that no negligence was shown upon the part of Westmoreland; (3) that the injury was caused by the contributory negligence of the occupants of the automobile; (4) that error was committed in making proof that Delamar & Allison carried indemnity insurance; and (5) that error was committed in submitting the issue whether either deceased had suffered conscious pain and suffering, and in permitting the estate of Ward, Sr., to recover on that account.
The most difficult question in the case is the one first stated, that is, whether the relationship of master and servant existed between Westmoreland and Delamar & Allison.
Upon this question it may first be said that no objection is made to the instructions which submitted this issue to the jury, and it remains therefore only to determine, in the decision of that question, whether the evidence was legally sufficient to support the finding of the jury that the relationship of master and servant existed, and, in the decision of that question, we must, of course, view the testimony in the light most favorable to the plaintiffs.
This testimony may be summarized as follows: The State Highway Department was spreading gravel upon a force account, and was shipping by railroad freight the gravel so used. Delamar & Allison suggested a cheaper gravel might be obtained by hauling it from local gravel pits, and they entered into a contract with the highway department to furnish and deliver the gravel. Their contract required them to deliver it on the roads. Delamar & Allison employed a large number of persons, about 302 in fact, to haul and deliver this gravel, and all of them were paid the same price for this service. No one hauled gravel until their trucks had been employed and put to work by Delamar & Allison.
Allison testified that Bratcher applied to the highway department engineer for employment, but Bratcher denied this. One of these trucks was driven by Buster Westmoreland. The gravel was purchased from Clifton Graham, who stayed in the pits to keep check on the amount of gravel hauled, but the undisputed testimony appears to show that Delamar & Allison were in control of the pits, and that the trucks were loaded by their employees.
A number of the truck owners testified that they were paid by Delamar & Allison, after one per cent. of the amount due them had been deducted for insurance, at least they were advised that the deduction was made on that account. Delamar & Allison denied that the deduction was made for that reason, but testified that this one per cent. was deducted on account of the advance payment, and that when the truck owners waited until the regular pay day no deductions were made.
There was testimony to the effect that a number of the laborers who were employed to load the trucks in the gravel pits were discharged for shooting dice, and that this was done with Allison's approval. There was testimony to the effect that certain of the truck drivers drove off the usual road through the field of a colored man, and that Allison stopped this, and that Allison also directed certain of the drivers where to deliver the gravel, and that he also stopped some of the drivers from driving over loose gravel.
A number of placards were furnished the truck drivers to place on the trucks reading as follows: No placards were placed on the Bratcher trucks, but this was because the supply of placards was exhausted. It was testified on behalf of Delamar & Allison that the placards were placed on the trucks under the direction of the supervising engineer of the highway department.
There was a controversy as to whose servant the man was who supervised the dumping of the gravel. The drivers obeyed the directions given by the dumper at the end of the haul. Unquestionably the dumper was obeying the orders of the engineer of the highway department as to the places where and the manner in which the gravel should be dumped, but in so doing he was enabling Delamar & Allison to perform the essential part of their contract by dumping the gravel as their contract required them to do. The dumper was therefore engaged in the performance of a necessary part of the contract of Delamar & Allison, and the jury might have found that he was loaned to Delamar & Allison for a particular service and was therefore their servant. Arkansas Natural Gas Co. v. Miller, 105 Ark. 477, 152 S.W. 147; St. L. I. M. & S. R. Co. v. Washington, 114 Ark. 184, 169 S.W. 770; Arkansas Logging Co. v. Martin, 116 Ark. 318, 173 S.W. 184; Dubisson v. McMullin, 163 Ark. 186, 259 S.W. 400.
As a matter of fact, the haulers did not require any considerable control. Their trucks were loaded in the pits by men who were admittedly the servants of Delamar & Allison, and the dumper told the men where and how to dump the gravel.
Delamar & Allison testified that they did not in any case employ the driver of any truck, and that these drivers were employed and paid by the truck owners, and that they had no control over any of the drivers and were not concerned as to the manner in which they did their work, and were interested only in the result thereof. But this was the principal question of fact in the case, and we think the testimony was sufficient to support the finding that Delamar & Allison employed the trucks, and none were engaged except those employed by them, and the right to discharge necessarily implied, and that they had the right to direct and control the drivers of the trucks and had exercised that authority, although but few directions were required.
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