Gaskill v. Calaveras Cement Co.

• Decision Date: 31 January 1951
• Court: California Court of Appeals Court of Appeals
• Parties: GASKILL et al. v. CALAVERAS CEMENT CO. et al. Civ. 7829.

Page 633

226 P.2d 633

102 Cal.App.2d 120

GASKILL et al. v. CALAVERAS CEMENT CO. et al.

Civ. 7829.

District Court of Appeal, Third District, California.

Jan. 31, 1951.

Rehearing Denied March 2, 1951.

Hearing Denied March 29, 1951.

Clark & Heafey, and Augustin Donovan, Oakland, for appellants.

Mazzera, Snyder & DeMartini, Stockton, for respondents.

ADAMS, Presiding Justice.

This is an appeal by Pat L. Nolet, W. W. Miles, and K. D. Anderson, copartners doing business as Motor Transport System (hereinafter referred to as M.T.S.), from a judgment entering against M.T.S. and others upon a verdict of a jury in favor of plaintiffs, which judgment awarded said plaintiffs damages in the sum of $18,000 for the death of Effie Mae Gaskill, the wife of Frank Gaskill and mother of the other plaintiffs. Mrs. Gaskill's death resulted from an automobile accident for which defendants LeBrun and Swain admitted responsibility.

The evidence shows that a tractor owned by Swain and operated by defendant LeBrun, which tractor was hauling a trailer and semi-trailer rented by Swain but owned by M.T.S. collided with a parked automobile in which Mrs. Gaskill was seated. The sole question presented on this appeal is whether defendants Swain and LeBrun alone are liable, or whether, at the time of the accident, they were employees or agents of M.T.S., thus rendering the said M.T.S. also liable.

It is contended by M.T.S., and by Swain, also, that Swain was an independent contractor and that LeBrun was his employee. The evidence shows that on August 14, 1948, Swain and M.T.S. entered into a written agreement under the terms of which Swain, designated as contractor, represented that he was the owner of a tractor which he would use to pull such equipment as M.T.S., designated as carrier, should from time to time indicate, carrier to designate the equipments, loads and points of origin and destination of such equipment, the hauling to be on carrier's bills of lading. Contractor undertook to furnish his tractor fully equipped, including two sets of air lines, and agreed to assume full responsibility for damages or loss of same due to use, fire or theft, or otherwise, and to hold carrier harmless from any claim by reason of the above. He was also to operate said equipment himself, or to furnish operators, without cost to carrier, to carry insurance including a Workmen's Compensation insurance policy covering his employees; and he agreed to hold carrier harmless from any claim arising out of any such employer-employee relationship or for injuries to himself. He also agreed to bear the entire cost of maintenance of his own equipment, and to be responsible to carrier for damage to carrier's equipment from any cause, up to $500 in any one accident. Carrier agreed to bear such cost of maintenance and repair of its own equipment which resulted from reasonable usage, wear and tear.

The contract especially provided that contractor should be deemed to be an independent contractor, maintaining complete control over all equipment used, including driving personnel, hauling or other services; and that carrier should only designate the loads to be made and the places of pick-up and delivery, all other matters, unless otherwise provided, to be under the management, control, and supervision of contractor. All taxes or fees were to be paid by contractor, except that any Federal transportation tax should be paid by the carrier. Compensation to contractor was to be such as was agreed upon from time to time. Provision was made for cancellation of the agreement by either party on ten days' written notice.

Thereafter Swain secured from the Public Utilities Commission permission to operate as a Highway Contract Carrier. In the meantime M.T.S., also operating as a contract carrier, secured a contract with Calaveras Cement Co. to haul cement to the sites of various projects in the Feather River Canyon. At the time of the accident Swain's tractor, operated by LeBrun, was hauling a trailer and semi-trailer rented to Swain by M.T.S. which was on its way to load cement which Swain had undertaken to transport for M.T.S., to assist it in carrying out its contract with the cement company.

Testimony given at the trial showed, without contradiction, that LeBrun was hired and paid by Swain, knew nothing of M.T.S., and received orders from Swain only; also it was shown that M.T.S. never gave Swain instructions as to the route to be followed by him, the manner of operation of the equipment, or as to whom Swain should hire; and after the accident Swain paid costs of repair to the tractor.

Appellant M.T.S. urges on this appeal that the evidence clearly establishes that Swain was an independent contractor, and, accordingly, that it is not liable for damages resulting from the accident.

Respondents contend that Swain and LeBrun were acting as agents of M.T.S. and that, though there was a conflict in the evidence, it is sufficient to establish that relationship. They rely upon testimony that the trailer and semi-trailer being hauled by Swain's tractor belonged to M.T.S.; that the tractor and the trailer and semi-trailer were of the same color, and all bore the insignia of M.T.S.; that the loads hauled by Swain were on M.T.S. bills of lading, which carried the identifying numbers of each piece of equipment; that on some occasions M.T.S. supplied fuel for operation of the tractor, though the evidence shows without contradiction that deductions were made by it for such fuel on settlement with Swain.

We are satisfied that the evidence clearly shows that Swain was not an employee or agent of M.T.S. but was an independent contractor. It shows that, while Swain did not own the trailer and...