Giroud v. Stryker Transp. Co.
| Decision Date | 06 February 1928 |
| Docket Number | No. 96.,96. |
| Parties | GIROUD v. STRYKER TRANSP. CO. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.) exists between the employee and employer is a court question, and cannot be transferred to the consideration of the jury.
Appeal from Supreme Court.
Action by Louis Giroud against the Stryker Transportation Company and another. From a judgment for plaintiff, the named defendant appeals. Judgment against the named defendant reversed.
See, also, 139 A. 898.
Cole & Cole, of Atlantic City, for appellant.
Burton A. Gaskill, of Atlantic City, for respondent.
This is an action on account of personal injuries sustained by plaintiff in a collision between an auto truck, driven by one Joseph Andryshowich, and a motorcycle, operated by plaintiff. The plaintiff claimed that said driver was a servant of the Stryker Transportation Company. Both were joined as defendants, and a judgment for $30,000 was recovered against them, but only the Stryker Transportation Company has taken an appeal to this court. The appeal is mainly based on the refusal of the trial court to grant a motion for a direction of a verdict on behalf of appellant, on the ground that, as a court question, the evidence showed that the driver was not acting as a servant of appellant, but as an independent contractor. We are of the opinion that it was error to refuse the motion for a direction, and therefore need only to consider this one ground of appeal.
The evidence, presented at the trial, against which there was no contradictory testimony, shows that the collision occurred on the 21st day of April, 1926, on the northerly side of Bay avenue, a public highway, in the city of Somers Point, Atlantic county. The auto truck was owned and operated by Joseph Andryshowich (hereinafter called the driver), who had contracted with the appellant to haul dirt or gravel from a place back of Somers Point, known as Herman Endries' property, to the Gateway Casino, where the appellant was making a fill. The contract was made by one John La Rue, manager for the appellant, and according to its terms the driver furnished the auto truck, paid all the operating expenses, and received $2.75 per hour, being paid once a month. It was his duty, when he arrived at the place from where the gravel came, to have the truck loaded by a steam shovel, provided by the appellant, and then to proceed to the place of fill and deposit his load. At the time of the collision, the driver, unaccompanied, was going for another load of gravel. The driver reported for work to one Louis Trout, who was employed by the appellant as general foreman in charge of the fill at the Gateway Casino, and who furnished a time-card to the driver and kept his time. The foreman also directed the driver where to load and where to deposit the dirt or gravel; but his principal duty was to designate where the truck should back up at the place of fill and unload. The driver had the exclusive care, control, and management of the truck, and no one directed him as to what route he was to take, or at what speed the truck was to be driven.
These undisputed facts clearly indicate that the contract with the driver was not an engagement of a servant, submitting to subordination and subject momentarily to superintendence, but of one capable of independent action, to be charged by its results, and therefore the relation which existed between the driver and appellant was a court question, and could not be transferred to the consideration of the jury.
The question before us is whether the driver, in collecting and delivering the gravel, was a servant, for whose acts the appellant was liable under the doctrine of respondeat superior, or an independent contractor, for whose acts it was not liable. The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done. The appellant exercised no control over the driver in the performance of the work, other than to direct where the material should be collected and delivered. It paid an agreed compensation for the work. We are unable to hold that the doctrine of respondeat superior applies.
The respondent, in...
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