Elliason v. Western Coal & Coke Co.

• Decision Date: 06 March 1925
• Docket Number: No. 24390.,24390.
• Citation: 202 N.W. 485,162 Minn. 213
• Parties: ELLIASON v. WESTERN COAL & COKE CO. et al.
• Court: Minnesota Supreme Court

202 N.W. 485

162 Minn. 213

ELLIASON v. WESTERN COAL & COKE CO. et al.

No. 24390.

Supreme Court of Minnesota.

March 6, 1925.

Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.

Action by Oscar Elliason against the Western Coal & Coke Company and others. From order denying its motion in the alternative for judgment or new trial, the named defendant appeals. Affirmed.

Jamison, Stinchfield & Mackall, of Minneapolis, for appellant.

Olof L. Bruce, of Minneapolis, for respondent.

LEES, C.

A motor truck, owned by William N. Hoover and driven by his son George, collided with respondent's motorcycle and respondent was injured. He brought this action to recover damages from the Hoovers and from the Western Coal & Coke Company, and obtained a verdict of $17,500 against the three defendants. The coal company has appealed from an order denying its motion in the alternative for judgment or a new trial. The principal question is whether appellant is responsible for George Hoover's negligence in operating the truck.

Appellant was a retail coal dealer in the city of Minneapolis. It owned a number of delivery trucks and hired others in the busy season. The Hoover truck was one it had hired. It bore a sign which read, "Western Coal & Coke." In September, 1922, this truck hauled 45 tons of coal for appellant. For this service the senior Hoover was paid $1 a ton. There was evidence which would warrant the jury in finding that a portion of the 45 tons of coal was hauled before and a portion after September 19th, the date of the accident; that when George began to do the hauling appellant's yardman told him to come "every morning until he didn't have enough orders to go around"; that he hauled one or more loads of coal for appellant on September 18th, collected $17 from the person to whom he made delivery, and, as it was late in the day, took the money and some delivery slips home with him and kept the money and slips overnight; that the next morning he started from home, carrying the slips and the money with him, and was on his way to appellant's yards, distant about 40 minutes run by truck from his father's house, when the accident happened; that when he started on the trip his purpose was to turn the money and slips over to appellant and to haul more coal; and that in the afternoon following the accident he did haul a load of coal for appellant.

If the accident had happened while George was on his way from the appellant's yard to the house of one of its customers to make a delivery of a load of coal, there would be no doubt about appellant's liability. Waters v. Pioneer Fuel Co., 52 Minn. 474, 55 N. W. 52, 38 Am. St. Rep. 564; Dunn v. Reeves Coal Co., 150 Minn 282, 184 N. W. 1027. In the Waters Case, the negligent act consisted in the driver's failure to properly replace the cover of a coal hole after making a delivery of coal; and in the Dunn Case, in the driver's negligent operation of the truck while making a delivery of coal. In Rait v. New Eng., etc., Co., 66 Minn. 76, 68 N. W. 729, Mr. Justice Mitchell said:

"In every case the decisive question in determining whether the doctrine of respondeat superior applies is, had the defendant the right to control in the given particular the conduct of the person doing the wrong. * * * If this control existed, it makes no difference whether the person doing the injury was the `servant' of the defendant, in the popular sense of that word or a person merely employed to do a specified job or piece of work."

In Meyers v. Tri-State Auto. Co., 121 Minn. 68, 140 N. W. 184, 44 L. R. A. (N. S.) 113, it was said that the right of control is the test of the existence of the relation of master and servant. In Waters v. Pioneer Fuel Co., supra, the court said that, had the driver of the coal wagon been employed by the day or month and furnished with the team and wagon by the company, its control of him and of his acts would not have been greater or different.

The doctrine of respondeat superior rests in part at least upon the power of the master to select, control, and dismiss his servants. In determining whether the defendant is liable, proper inquiries are: What was the tort-feasor employed to do? Was he doing something within the range of the contract of hiring? Who owned the instrumentality by means of which the tort was committed? If it did not belong to the defendant, was the tort-feasor's use of it expressly or impliedly authorized? Was he on or off duty at the time and place of the injury to plaintiff? These are matters of probative significance. Their significance may be so clear as to warrant the court in holding that as a matter of law the rule of respondeat superior is or is not applicable; but, if more than one inference may fairly be drawn from the facts, or if there is a conflict of testimony regarding the facts, then the question should be submitted to the jury. If the relation of master and servant exists between the defendant and the tort-feasor, the test of responsibility is usually stated thus: Was the servant acting in the course and within the scope of his employment when the tort was committed, or was he at liberty from the service and pursuing his own ends exclusively? Applying this rule in Kuehmichel v. Western Un. Tele. Co., 125 Minn. 74, 145 N. W. 788, L. R. A. 1918D, 355, it was held that where the accident happened during the servant's hours of employment while, in obedience to a call from the master, he was on his way from his home to his master's office, the master was liable. In addition to this case, respondent cites Fransen v. Kellogg, 150 Minn. 54, 184 N. W. 364; Behrens v. Hawkeye Co., 151 Minn. 478, 187 N. W. 605; and Stoneman v. Washburn-Crosby Co., 153 Minn. 331, 190 N. W. 605. In the first case the automobile was owned by defendant and, at the time of the accident, was being operated by its employee in its business; in the second case, defendant's truck, driven by an employee, injured plaintiff while the driver was on his way to his home with the truck loaded with gasoline, his purpose being to get his noonday meal and then go over his usual route to deliver the gasoline; and, in the third, the automobile was owned by the master and furnished to the servant, a city salesman, for his use in soliciting business for the master. The accident happened during the hours of his employment and while he was following the usual route from his home to his place of work, intending to stop at a doctor's office for treatment before beginning his day's work. In each of these cases the employer was held liable for the negligence of the employee in driving the employer's vehicle. The facts in each differ in one respect or another from the facts in the case at bar. Here the truck was not owned by the employer; the driver was not one of its regular employees and had no fixed hours of employment; he might stay at home or go to...