Densey v. Bartlett

• Citation: 318 Ill. 616,149 N.E. 591
• Decision Date: 04 December 1925
• Docket Number: No. 16850.,16850.
• Parties: DENSEY v. BARTLETT.
• Court: Supreme Court of Illinois

318 Ill. 616

149 N.E. 591

DENSEY

v.BARTLETT.

No. 16850.

Supreme Court of Illinois.

Oct. 28, 1925.

Rehearing Denied Dec. 4, 1925.

Action by Marshall O. Densby against Frederick H. Bartlett and another. Judgment against the defendant named was affirmed by the Appellate Court, and he appeals.

Reversed.Appeal from Third Branch, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Lee W. Carrier, Judge.

Cooke, Sullivan & Ricks and Vail, Roe & Plamondon, all of Chicago (George A. Cooke and Edward H. Fiedler, both of Chicago, of counsel), for appellant.

Roy O. West, Percy B. Eckhart, and Vincent G. Gallagher, all of Chicago (William L. Bourland, of Chicago, of counsel), for appellee.

FARMER, J.

Appellee, Marshall O. Densby, brought suit in the circuit court of Cook county against Frederick H. Bartlett and John T. Saracino for damages sustained as a result of the negligent operation of an automobile in which plaintiff was a passenger.

Bartlett was engaged in selling real estate in Chicago. He was engaged extensively in the business of purchasing outlying properties, subdividing them into blocks and lots and selling them. Saracino operated a garage and was engaged in the business of letting automobiles for hire and furnishing drivers for them. For the transportation of customersand prospective customers to his subdivisions Bartlett provided automobiles, which he hired for that purpose from persons who were engaged in furnishing automobiles for hire. Bartlett also paid for transportation of prospective customers who visited his subdivisions by railroad train. On the day of the accident to plaintiff, Bartlett was engaged in selling a subdivision on the south side of the city known as ‘Greater Chicago,’ and for the purpose of carrying prospective purchasers to and from the subdivision had contracted with Saracino, a licensed liveryman, for the hire of automobiles operated by Saracino's chauffeurs, to haul the prospective customers. Plaintiff had previously purchased a lot in the subdivision, but some misunderatanding had arisen about its location, and the day of the injury he, his wife, and daughter went out to the subdivision on the Illinois Central Railroad. Their tickets had coupons attached, which, if presented to Bartlett's office at the subdivision, entitled them to be furnished transportation by him to return. Plaintiff, his wife, and daughter went to Bartlett's office to present their coupons and get return tickets. Plaintiff said he was obliged to be home by a certain time, and it appears there would be no train leaving early enough to enable him to get home at that time. One of Bartlett's agents suggested they take one of ‘our’ cars used for the transportation of customers. Plaintiff consented to do so. The agent had a car drive up, and plaintiff and his wife and daughter got in and started for home. On the way the chauffeur drove one side of the car over a safety island, throwing plaintiff out and severely injuring him.

Pleas of the general issue and special pleas denying ownership, operation, and control of the automobile were filed. There was a trial by jury and verdict for plaintiff against both defendants for $40,000. Plaintiff remitted $15,000. Both Bartlett and Saracino filed motions for a new trial, and Saracino also moved for judgment non obstante veredicto.That motion was sustained and judgment rendered for him for costs. Bartlett's motion for a new trial was overruled and judgment rendered on the verdict against him for $25,000. He prosecuted an appeal to the Appellate Court for the First District, where the judgment was affirmed and a certificate of importance and an appeal granted to this court. Hereafter Bartlett will be referred to as appellant and Densby as appellee.

The important question presented and argued is whether, under the circumstances proved, appellant is liable. Whether appellee's injury was caused by the negligence of the driver of the car is not disussed in the briefs, and we will assume that is not a controverted question.

[1] Appellant contends he was not the master of the driver of the car, and is not liable for plaintiff's injuries. The Appellate Court held the relationship of master and servant existed between appellant and the driver of the car. If that was correct, then that relation did not exist between Saracino and the driver, and the judgment against appellant and in favor of Saracino would properly have been affirmed. The Appellate Court held that there is apparently some conflict or lack of uniformity in the decisions, but said the general proposition was deducible from the decisions that--

‘The law recognizes that a servant in the general service of one may be transferred, under contract or otherwise, to the service of another, so as to become for the time the latter's servant, with all the legal consequences of that relationship.’

That proposition is supported by many decisions and we believe is disputed by none. The question presented for decision is a question of law. Appellant moved for a directed verdict at the close of plaintiff's evidence and again at the close of all the evidence.

There was no conflict in the testimony as to the material facts, and the only question on the merits to be considered by this court is whether there was any evidence tending to prove appellee's case against appellant.

The original declaration alleged defendants owned, operated, and controlled the motor driven vehicle; that it was driven by an employee of defendants, who so negligently drove it as to injure plaintiff. Some of the additional counts alleged Saracino was engaged in letting automobiles for hire; that Bartlett was engaged in selling real estate, and the two entered into an agreement whereby Saracino was to furnish cars and drivers to Bartlett, when requested; that Bartlett was to hold himself out to prospective purchasers as owner and operator of the cars and was to have full control of them. There was no proof of any agreement between the two men except that Saracino was to furnish cars and drivers to Bartlett when requested, for which Bartlett was to pay Saracino an agreed sum per day or per hour for their use.

In Schweitzer v. Thompson & Norris Co., 229 N. Y. 97, 127 N. E. 904, the court said:

‘It is well settled that one may be in the general service of another and nevertheless, with respect to particular work, may be transferred with his own consent or acquiescence, to the service of a third person, so that he becomes the servant of that person with all the legal consequences of the new relation. [Citing cases.] Difficulty frequently arises in determining when this transfer of relationship takes place.’

The same court, discussing the subject in Braxton v. Mendelson, 233 N. Y. 122, 135 N. E. 198, said:

‘Was the servant whose negligence injured a third party performing work for his master within the scope of his employment, or was he loaned by his master to another to do the latter's business? In the one case the general employer is liable for his torts; in the other he is not. But while the rule is clear its application is often difficult. The true relationship between master and servant may be obscured by circumstances seemingly contradictory.’

In Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648, the owner of an automobile who hired it to another with a licensed chauffeur to drive it was sued for damages resultingto plaintiff from the negligence of the driver while driving for the hirer and was held liable. The driver was subject to the hirer's orders as to when and where the car should be driven. In discussing the law the court expressed the opinion that there is a distinction between cases where there is a general letting of railroad trains, with a man or men to work with them, and carriage or driving cases. The court said:

‘In the application of these principles to the hiring of a carriage with horses and a driver, to be used for the conveyance of the hirer from place to place, it has been held almost universally that, in the care and management of the horse and vehicle, the driver does not become the servant of the hirer, but remains subject to the control of his general employer, and that therefore the hirer is not liable for his negligence in driving. * * * If the defendants had furnished horses, a carriage, and a driver under a similar contract, instead of an automobile and a driver, there would be no doubt of their liability for the negligence of the driver in the management of the team. The question is whether the same result should be reached upon the facts of this case. The analogy between the two kinds of contract is very close. The management of an automobile properly can be trusted only to a skilled expert. The law will not permit such a vehicle to be run in the streets except by a licensed chauffeur of approved competency. The danger of great loss of property by the owner, as well as of injury to the chauffeur, his servant, is such as to make it of the highest importance that care should be exercised in his interest, and that the control and management of the machine should not be given up to the hirer. The reasons for applying this rule in a case like the present are fully as strong as when a carriage and horses are let with a driver. The decisions are conflicting in cases where there has been a general letting of railroad trains and large machines of different kinds, with a man or men to work with them. It has often been held in such cases, where the hirer was to have the general control and use of them, that the men in charge became his servants, for whose negligence he alone was liable as master. [Citing cases.] But we are of opinion that there is a distinction between these cases and the so-called carriage or driving cases, and that the hiring of an automobile, with a licensed chauffeur in the general service of an owner, falls within the principle covering cas...