Jarvis v. Wallace

Citation123 S.E. 374
CourtSupreme Court of Virginia
Decision Date12 June 1924
PartiesJARVIS. v. WALLACE.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Master; Servant.]

Error to Circuit Court, Northampton County.

Action by Alfred Wallace against George T. Jarvis Judgment for plaintiff, and defendant brings error. Reversed.

Mears & Mears, of Eastville, for plaintiff in error.

Chas, M. Lankford, Jr., of Franktown, for defendant in error.

WEST, J. There was a collision between an automobile truck owned by George T. Jar-vis and a Maxwell automobile owned by Alfred Wallace. Wallace brought this action against Jarvis to recover damages for the injury to his automobile, and recovered a judgment for $650, to which this writ of error was granted.

According to the uncontroverted evidence Jarvis became the owner of the truck in June, 1920, and entered into a contract whereby he was to furnish Edward Moore the truck, for the purpose of doing a trucking business, and pay the state license and hauling license tax on the truck. Moore was to furnish all gasoline and oils for the truck and keep it in good mechanical condition. Moore had sole authority to make contracts with whomsoever he saw fit for the hauling of produce and other goods, without consulting Jarvis, and to collect all moneys, for work done by the truck. Moore had exclusive possession and absolute control of the truck, and Jarvis had no authority over it, or control over Moore. If he hauled for Jarvis, Jarvis paid him the same Moore would have charged any one else. Moore was to pay Jarvis one half of the gross earnings of the truck and keep the other half for himself.

At the time of the collision Moore was operating the truck under this contract.

The plaintiff in error alleges that the court erred in:

(1) Refusing to give instruction No. 7, as offered;

(2) Giving instruction No. 7 with an amendment; and

(3) Refusing to set aside the verdict of the jury as contrary to the law and the evidence.

Instruction No. 7, as offered, reads as follows:

"The court further instructs the jury that, if they believe from the evidence that Edward Moore, who was the driver of said truck was the bailee of George T. Jarvis, and that the said Edward Moore had sole control of said truck, and that said George T. Jarvis had nothing to do with the driving and running of the truck, they must find for the defendant."

The court gave this instruction with the following addition:

"But if the jury should believe from the evidence that Edward Moore was driving said truck at the time of the collision under an agreement with its owner, that his services in procuring employment for and running thetruck was to be compensated by a certain net percentage of its earnings in lieu of wages, then such an arrangement would not constitute Moore a bailee of the truck in the sense that term is used in the first part of this instruction."

The notice of motion for judgment, addressed to George T. Jarvis by the plaintiff, charges that—

"You, by one Ed. Moore, your agent and servant, who was at the time acting within the scope of his authority and employment, did drive, operate, and control a Seldon automobile truck along the cross-road, " etc.

The first two assignments of error Involve the question whether Edward Moore was the agent and servant of George T. Jarvis, or a bailee of the truck, at the time of the collision.

The ground upon which the negligence of the servant is imputed to the master is because the master employs and can direct the servant's actions and dispense with his services.

A servant is a person subject to the command of his master as to the manner in which he shall do his work. Yewens v. Noak, L. It. 6 Q. B. Div. 532.

A master is one who not only prescribes the end, but directs, or at any time may direct, the means and method of doing the work. Bailey v. Troy & B. R. Co., 57 Vt. 252. 52 Am. Rep. 129.

In section 2, volume 1, of Labatt's Master and Servant (2d Ed.) the author defines the relation of master and servant as follows:

"Where one is employed to do certain work for another, who under the express or implied terms of the agreement between them is to have the right of exercising control over the performance of the work, to the extent of prescribing the manner in which it shall be executed, the employer is a master, and the person employed is his servant."

It is apparent that George T. Jarvis, the owner of the truck, and Edward Moore, the driver of the truck, did not occupy the relation of master and servant. Moore had absolute possession and control of the truck, made contracts with and hauled for whomsoever he pleased, and...

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11 cases
  • American Savings L. Ins. Co. v. Riplinger
    • United States
    • United States State Supreme Court (Kentucky)
    • May 2, 1933
    ...but directs, or may direct, the manner of doing the work. Bowen v. Gradison Const. Co., 236 Ky. 270, 32 S.W. (2d) 1014; Jarvis v. Wallace, 139 Va. 171, 123 S.E. 374. A master within the doctrine of respondeat superior is the one who cannot only order the work, but also how it shall be done.......
  • American Sav. Life Ins. Co. v. Riplinger
    • United States
    • Court of Appeals of Kentucky
    • May 2, 1933
    ...work but directs, or may direct, the manner of doing the work. Bowen v. Gradison Const. Co., 236 Ky. 270, 32 S.W.2d 1014; Jarvis v. Wallace, 139 Va. 171, 123 S.E. 374. A master within the doctrine of respondeat superior is the one who cannot only order the work, but also how it shall be don......
  • Tackett v. Inland Steel Co.
    • United States
    • United States State Supreme Court (Kentucky)
    • January 16, 1940
    ...or may direct, the manner of doing the work. Bowen v. Gradison Construction Company, 236 Ky. 270, 32 S.W. (2d) 1014; Jarvis v. Wallace, 139 Va. 171, 123 S.E. 374. A master within the doctrine of respondent superior is the one who cannot only order the work, but also how it shall be done. Ca......
  • Grocers Biscuit Co. v. Hinton
    • United States
    • United States State Supreme Court (Kentucky)
    • June 9, 1936
    ...but directs, or may direct, the manner of doing the work. Bowen v. Gradison Const. Co., 236 Ky. 270, 32 S.W. (2d) 1014; Jarvis v. Wallace, 139 Va. 171, 123 S.E. 374. A master within the doctrine of respondeat superior is the one who cannot only order the work, but also how it shall be done.......
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