Glover v. Richardson & Elmer Co.

• Decision Date: 01 August 1911
• Court: Washington Supreme Court
• Parties: GLOVER v. RICHARDSON & ELMER CO.

116 P. 861

64 Wash. 403

GLOVER v. RICHARDSON & ELMER CO.

Supreme Court of Washington

August 1, 1911

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by James M. Glover against the Richardson & Elmer Company. From a judgment for plaintiff, defendant appeals. Affirmed.

McClure & McClure and Edwin C. Ewing, for appellant.

Brightman & Tennant, for respondent.

FULLERTON J.

On July 5, 1910, the respondent, then in the employment of the Seattle-Tacoma Power Company as a lineman, was working in an alley in the city of Seattle, stringing new light lines to take the place of old ones that had been broken and torn down during the time of a fire occurring a few days before. Some days before a tool box containing working tools and fixtures had been brought into the alley and deposited by the side of the way. During the course of the day named the respondent was searching for some tool or fixture in the box when a team hitched to a wagon loaded with lumber was driven into the alley by one A. J. Taylor. As the wagon passed the place where the respondent was at work the hind wheel on the side on which the respondent was working suddenly gave way causing the load to fall against the respondent, pinning him to the ground and severely injuring him. He thereupon brought the present action alleging that the team and wagon belonged to the appellant; that it was driven by appellant's servant in the transaction of the business of appellant; that the wagon was weak, defective and overloaded and broke and collapsed because thereof. The appellant answered by a general denial, and certain affirmative pleas not necessary to especially notice. The trial developed the fact that the team and wagon were owned by Taylor, the driver; that the appellant was engaged in the business of manufacturing and selling sashes, doors, and finishing lumber, and had employed Taylor with his wagon and team early in the year to do their hauling, paying him therefor a wage of $140 per month for a certain period and $150 per month thereafter. Taylor's duties consisted of hauling rough lumber from the depots and wharves to the appellant's factory, and finished products therefrom to the consumers. The wagon bore on its sides signs on which were painted the name of the appellant, its business address, and the words, 'Sash, Doors, Finishing.' He was subject at all times to the directions of the appellant's foreman, and was assisted by other employés of the appellant in loading and unloading when at the factory. When there was no hauling to do, which event seems to have occurred only occasionally, he assisted other workmen in their duties around the factory. Taylor was expected to work nine hours a day, to feed and care for his own team, keep his wagon in repair, and was at liberty to determine the size of his load, and choose his own route in going and coming from the places between which he was directed to haul.

As to the cause of the collapse of the wheel, it was shown on the part of the respondent that the wagon was loaded in such a way as to cause the principal part of the weight to fall on the hindwheels; that the place where the wheel gave way was comparatively smooth, and that there was no other cause for the wheel giving way than excessive weight on the wagon. On the other side it was shown that the wagon was loaded with flooring at the time it collapsed which was estimated to weigh less than 2,700 pounds; that the wagon was intended to carry with safety a load up to two tons, and that the wheel that collapsed had been examined by a wagon maker not many weeks prior to the accident, and pronounced in good repair. The wheel after its collapse showed fresh breaks and no concealed defects.

At the conclusion of the case the appellant challenged the sufficiency of the evidence to justify a verdict for the respondent, arguing, first, that the evidence showed Taylor to be an independent contractor; and second, that the evidence failed to show negligence on the part of Taylor. The court denied the challenge, but submitted both questions to the jury, which found a verdict for the respondent. Judgment was entered thereon and this appeal followed.

The appellant renews its objections in this court, insisting that the trial court erred in refusing to take the case from the jury on one or both of the grounds suggested. It has seemed to us, however, that the ruling of the trial court was right. Whether a person performing work for another is performing it as an independent contractor or as the servant or employé of that other is a question not always easy of solution, but all of the authorities agree that the test of the relationship is the right of control on the part of the employer. Thus, in 26 Cyc. 1546, an independent contractor is defined as follows: 'An independent contractor is one who, carrying on an...