Hough v. Central States Freight Service
| Decision Date | 22 September 1936 |
| Docket Number | 43457. |
| Citation | 269 N.W. 1,222 Iowa 548 |
| Parties | HOUGH v. CENTRAL STATES FREIGHT SERVICE, Inc. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Loy Ladd, Judge.
An action by plaintiff to recover damages from defendant in a collision with a truck engaged by defendant to haul freight across the state of Iowa from Omaha to Chicago, said truck having no permit to operate in Iowa. Verdict and judgment for plaintiff. Defendant appeals.
Affirmed.
Putnam, Putnam, Fillmore & Putnam, of Des Moines, for appellant.
Stipp Perry, Bannister & Starzinger, of Des Moines, for appellee.
This case arose out of an accident on highway No. 6 running across the state of Iowa from Council Bluffs to Davenport, the point of accident being a few miles east of the town of Casey Iowa.
In the original inception of the case plaintiff made W. P Ellsworth, H. P. Ellsworth, Central States Transit Company, a corporation, the Motor Carriers Mutual Insurance Association, and the Central States Freight Service, Inc., all defendants. Before trial, the case had been dismissed against the Central States Transit Company and the Motor Carriers Mutual Insurance Association, and no service having been had on W. P. Ellsworth and H. P. Ellsworth, their liability was not involved in the present controversy. The only defendant then against whom the case was prosecuted was Central States Freight Service, Inc. So in this opinion the word " defendant" will refer to the Central States Freight Service, Inc.
The accident out of which the action arose took place on March 3, 1934, at about 7 o'clock p. m. The plaintiff was riding in an easterly direction upon Primary Road No. 6, in Guthrie county, at a point about two miles east of the town of Casey. She was in an automobile owned and driven by her husband Norman Hough. At the time and place mentioned the Hough automobile drove into the Chevrolet auto truck operated by H. P. Ellsworth, which was also headed in an easterly direction, but which had stopped on the highway, and was without flares set out to warn motorists of its presence on the highway. Mrs. Hough was seriously injured in the collision. The truck was a 1 1/2 -ton truck owned by a brother of the driver of the truck, W. P. Ellsworth, of Kansas City, Mo., and bore a Missouri license for 1933. It was about 13 feet long, 6 feet wide and about 5 1/2 feet high. W. P. Ellsworth owned three or four trucks, and employed several drivers to haul freight for anybody from whom he could get a load, all over the country. Ellsworth contracted with the Central States Freight Service, Inc., and obtained a cargo to be transported from Omaha to Chicago, and the route taken by the driver of the truck to Chicago was over highway No. 6.
The driver had hauled freight from July, 1933, to March 3, 1934, and hauled cargoes during that period received from the defendant, which had a branch office in Kansas City, Mo., and also a branch office in Omaha, Neb. This truck and driver left Chicago March 1st with a load for defendant to Omaha, arriving at Omaha the evening of March 2, and delivered the goods on the morning of March 3d at the Central States Freight Service docks at Omaha. The same day he received a return cargo from defendant to be delivered in Chicago. Ellsworth looked after the payment of oil, gas, and repairs on the truck in transporting the various cargoes for the defendant, and defendant paid him nothing except the amount due for the hauling.
At the close of all the evidence in the case various motions were made by the defendant for an instructed verdict, which were overruled. The defendant requested 23 different instructions, all of which were refused. The court in giving the instructions to the jury told it in instruction 5 that the burden of proof in this case is on the plaintiff, and before she can recover it is incumbent upon her to establish by a preponderance of the evidence or the greater weight of the evidence certain propositions. The first proposition was that the Central States Freight Service, Inc., had engaged H. P. Ellsworth to transport merchandise by motortruck from Omaha to Chicago, with the expectation and in contemplation by the defendant, that the said Ellsworth would operate said motortruck in carrying out his employment upon the highways of the state of Iowa, without a permit so to do being first obtained as provided by the laws of Iowa; second, that Ellsworth was negligent in one or more respects set forth in the statement of issues; third, that the negligence of said H. P. Ellsworth was the proximate cause of the injury of the plaintiff and the damages resulting therefrom; fourth, that the plaintiff was free from negligence which contributed in any manner or degree to the collision and injuries; fifth, that the plaintiff as a result of the collision suffered damages in some amount; and that if the jury found by a preponderance of the evidence that plaintiff had established these propositions, then it was its duty to return a verdict for the plaintiff; but if it found that plaintiff had failed to establish any one of the propositions, then it was its duty to find for the defendant.
In instruction 8 the jury was told that it appeared in the evidence that the defendant had engaged H. P. Ellsworth to transport certain merchandise from Omaha, Neb., to Chicago, Ill., by motortruck, and that no license or permit had been obtained by any one from the Railroad Commission of the state of Iowa to operate his truck across Iowa. It instructed with reference to the contention by the defendant that it is not liable or responsible to the plaintiff for any negligence of said H. P. Ellsworth because he was an independent contractor, that if by a preponderance of the evidence it is found that when defendant engaged Ellsworth to transport the goods by motortruck it was expected and contemplated by the defendant that Ellsworth would operate said motortruck without a permit therefor in the state of Iowa, the Central States Freight Service, Inc., would be found responsible for the negligence of the said H. P. Ellsworth. It further instructed that if plaintiff failed to establish by a preponderance of the evidence that the defendant did contemplate that said motortruck should be operated upon the state highways without a permit, then the defendant was not responsible for any negligence of said H. P. Ellsworth, and the verdict should be for the defendant.
Centering around these instructions there arises a controversy in the case which warrants it being brought to this court.
The defendant had pleaded that it engaged Ellsworth as an independent contractor to transport the goods from Omaha to Chicago, and the plaintiff contended that in so engaging him, if the defendant engaged Ellsworth to do this in disregard of the laws of the state of Iowa, and in violation thereof, he was not an independent contractor and could not be considered such, and that the defendant would be liable for his acts. This case must be determined on these controversies.
The case was submitted to the jury, which returned a verdict for the plaintiff. The court finally cut down the amount of the verdict to $10,000. Motions for new trial, exceptions to the instructions, etc., were filed and overruled, and by reason of that defendant appeals.
The evidence in the case is such that had only the Ellsworths been the defendants in the case, the court would have had to send the case to the jury, for the evidence disclosed that on the evening in question, after dark, while it was raining, the truck was stopped on the highway; that its right wheels were either close to the edge of the pavement, or just off the pavement on the shoulder of the road. It is undisputed that there were no flares out, the driver himself testifying that he stopped because he thought his gas was running low and he went around the truck to cut in the reserve tank; that he did not place flares out, as required by law; and the automobile coming from the west ran into the rear of the truck.
The injuries suffered by the plaintiff were severe; her husband was driving the automobile, and the negligence of the husband, if any, is not imputable to her, she being merely a passenger in the automobile. So in the light of this testimony, there was evidence enough against the truckers for a jury case.
As to the defendant, and whether or not there was a case against it, the evidence shows by various exhibits and otherwise, that this defendant had contracted with H. P. Ellsworth, the driver of the truck, on various occasions, commencing with January 20, 1933, somewhat more than a year prior to the accident in question, for transporting merchandise from place to place. These contracts were introduced in evidence as Exhibits 1, 2, 3, 4, 5, and 6.
The first contract called for the transportation of a cargo from Chicago to Kansas City, dated January 20, 1933; the second contract, dated January 26, 1933, called for transportation from Chicago to Kansas City; the third contract dated February 1, 1933, was from Chicago to Kansas City; the fourth contract dated February 13, 1933, was from Chicago to Kansas City; and the fifth contract dated February 21, 1934, from Chicago to Omaha; and the sixth contract dated March 1, 1934, was for transportation from Chicago to Omaha. A return trip from Omaha to Chicago after this latter contract was fulfilled was the trip during which time the accident involved herein took place.
These contracts are identical in form. They undertake to create Ellsworth an independent contractor, the body of the contracts providing that the carrier is solely responsible for the handling of the merchandise in transit and for its delivery in good condition; the carrier is to provide...
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