Hartley v. Red Ball Transit Co., 20668.

• Decision Date: 18 June 1931
• Docket Number: No. 20668.,20668.
• Citation: 344 Ill. 534,176 N.E. 751
• Parties: HARTLEY v. RED BALL TRANSIT CO.
• Court: Illinois Supreme Court

344 Ill. 534

176 N.E. 751

HARTLEY

v.RED BALL TRANSIT CO.

No. 20668.

Supreme Court of Illinois.

June 18, 1931.

Error to First Branch, Appellate Court, First District, on Error to Superior Court, Cook County; L. P. Harriss, Judge.

Action by Catherine Hartley against the Red Ball Transit Company. Judgment for plaintiff was reversed by the Appellate Court (259 Ill. App. 229), and plaintiff brings certiorari.

Reversed and remanded, with directions.Philip Rosenthal, of Chicago (Stuart B. Krohn, of Chicago, of counsel), for plaintiff in error.

Church, Haft, Robertson & Crowe, of Chicago (Burt A. Crowe, of Chicago, of counsel), for defendant in error.

HEARD, J.

Plaintiff in error, Catherine Hartley, hereinafter called plaintiff, brought suit in the superior court of Cook county against defendant in error, the Red Ball Transit Company, hereinafter called defendant, to recover damages for personal injuries sustained by her. A jury trial was had, resulting in a verdict for $65,000, and judgment was enterd thereon. Upon review the Appellate Court for the First District reversed the judgment and remanded the cause for a new trial. 259 Ill. App. 229. Following a denial of the petition for rehearing plaintiff filed a motion asking the Appellate Court to set aside the order reversing the judgment and remanding the cause and to enter an order reversing without remanding, in order that she might present to the Supreme Court for review the questions passed upon by the Appellate Court. The motion was supported by an affidavit made by plaintiff's attorney, in which he stated that upon any future trial of the cause plaintiff would be unable to proceed any differently or produce any different evidence upon the question of agency, but that she would be compelled to rely upon the same evidence, both documentary and oral, and that the exact situation which arose on the trial below, both as to procedure and submission to the jury of the evidence in question, would present itself again upon any number of future trials. Thereupon the Appellate Court entered such order. The cause is here on certiorari.

On August 12, 1926, at 7:30 a. m., while crossing Clark street, a north and south street, in Chicago, on the south crosswalk on Wilson avenue, an east and west street, plaintiff was struck and knocked down by a moving van truck about 30 feet long and 6 1/2 feet wide, having thereon in large letters, ‘Move the Red Ball Way-Bonded Carriers-Red Ball Transit Company-Branches in Principal Cities-Largest Long Distance Household Distance Movers in America-Million Dollar Movers.’ In one corner, in much smaller letters, were the words, ‘Thomas Burke, Owner.’ She sustained severe injuries, for which the recovery was had.

The first count of plaintiff's declaration, after the necessary inducements, charged defendant, ‘through its agent, so negligently and carelessly operated and propelled its said motor vehicle or motor truck that by and through its negligence and carelessness it caused its said automobile to run into, against and upon the plaintiff,’ etc. The second count, based upon the same inducements, charged that defendant ‘operated and propelled its said motor vehicle at said time with a willful and wanton disregard of the rights of others who might lawfully be on said intersection at said time.’ The third count, based upon a city ordinance making Wilson avenue a ‘through’ or ‘stop’ street, charged that defendant ‘carelessly and negligently and in violation of said ordinance failed to come to a full stop before entering or crossing Wilson avenue at the place aforesaid, resulting in the injury of plaintiff.’ The fourth count charged a willful and wanton violation of the same ordinance with reference to ‘through’ or ‘stop’ streets as that made the basis of the third count, resulting in a willful and wanton infliction of injuries to the plaintiff. The defendant filed the plea of the general issue to plaintiff's declaration and also two special pleas. The first special plea was to the effect that the ‘defendant did not own, possess, operate, manage or control the automobile alleged by plaintiff in her declaration.’ The second special plea alleged that ‘the person operating the automobile was not the agent or servant of the defendant nor under any supervision, control or subject to any orders of this defendant.’

The evidence shows that at the time of the accident plaintiff was on her way to a wedding, and that upon reachingthe intersection she walked east on the crosswalk to the middle of the street, or the space between the two car tracks on Clark street, at a rate of about two miles an hour, the accident occurring under circumstances which warranted the jury in their finding, upon a special interrogatory submitted to them by the court, that the automobile in question driven by Thomas Burke willfully and wantonly ran into and against the plaintiff. No motion was made in the trial court to set aside this finding, and no mention thereof appears to have been made in the motion for a new trial or assignments of errors, and it will be assumed that the jury's finding in this regard was correct.

It is contended by defendant that it is not liable for damages sustained by plaintiff, for the reason that the driver of the truck whose negligence caused plaintiff's injuries was not its servant or employee, but was an independent contractor. An independent contractor is one who renders service in the course of an occupation representing the will of the person for whom the work is done only as to the result of the work and not as the means by which it is accomplished (Besse v. Industrial Com., 336 Ill. 283, 168 N. E. 368), and is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result (Rosenbaum Bros. v. Devine, 271 Ill. 354, 111 N. E. 97). The rule of respondeat superior does not apply if the party employed to do the work in the course of which the injury occurs is a contractor pursuing an independent employment and by the terms of the contract is free to exercise his own judgment and discretion as to the means and appliances that he may see proper to employ to do the work, exclusive of the control and direction in this respect of the party for whom the work is being done. Where the owner or contractor furnishes the material to be used and retains direction and control over the details of the work and the men employed, he is liable for negligence of the men employed. Pioneer Construction Co. v. Hansen, 176 Ill. 100, 52 N. E. 17;Jefferson v. Jameson & Morse Co., 165 Ill. 138, 46 N. E. 272. In Nelson Bros. & Co. v. Industrial Com., 330 Ill. 27, 161 N. E. 113, 114, this court said: ‘The right to control the manner of doing the work is the principal consideration which determines whether the worker is an employee or an independent contractor. Decatur Railway & Light Co. v. Industrial Board, 276 Ill. 472, 114 N. E. 915. The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. An independent contractor is one who undertakes to produce a given result, but in the actual execution of the work he is not under the orders or control of the person for whom he does the work, but may use his own discretion in things not specified. An independent contractor is one who contracts to do a specific piece of work, furnishing his own assistance, and executing the work either entirely in accordance with his own ideas or in accordance with a plan previously given him by the person for whom the work is done, without his being subject to the orders of the latter in respect to the details of the work. LaMay v. Industrial Com., 292 Ill. 76, 126 N. E. 604;Meredosia Drainage District v. Industrial Com., 285 Ill. 68, 120 N. E. 516. If the person for whom the work is being done retains the right to control the details and the manner and method by which the work is to be done, the relation of employer and employee exists. The fact that payment is to be made by the piece or the job or the day or the hour does not necessarily control where the workman is subject to the control of the employer as an employee and not as a contractor. Franklin Coal Co. v. Industrial Com., 296 Ill. 329, 129 N. E. 811;Amalgamated Roofing Co. v. Travelers' Ins. Co., 300 Ill. 487, 133 N. E. 259.’ See Sinclair Refining Co. v. Industrial Com., 317 Ill. 541, 148 N. E. 291.

The special pleas that the defendant did not own, possess, operate, manage, or control the automobile and that the person operating it was not the agent or servant of the defendant nor under any supervision, control, or subject to any orders of the defendant, raised issues of fact. Defendant, to maintain the issues in its behalf, introduced in evidence a contract between itself and Thomas Burke, the driver of the truck at the time of the accident, evidencing the sale of a Red Ball motortruck and equipment to Burke and an agreement to furnish him work, such work to consist of long-distance hauling (principally household goods) between cities. Among the provisions of this contract were the following: ‘It is agreed and understood that the truckman is not an employee of the company nor is he in any way or at any time its agent, he, the truckman, in the moving or transferring of any and all shipments being an individual contractor, is at all times to be considered and treated as such.’ ‘Truckman agrees to make all collections as directed by the company and turn same in at the first company office he passes,’ and ‘truckman agrees to report to all Red Ball offices located in cities through which he is passing and that he will follow instructions given him by Red Ball managers.’

Defendant claims that by reason of this contract it was relieved from all claims for damages arising through the negligence...