Jones v. Mutual Creamery Co

• Decision Date: 31 December 1932
• Docket Number: 4885
• Court: Utah Supreme Court
• Parties: JONES v. MUTUAL CREAMERY CO

17 P.2d 256

81 Utah 223

JONES v. MUTUAL CREAMERY CO

No. 4885

Supreme Court of Utah

December 31, 1932

Appeal from District Court, Fourth District, Utah County; M. M Larson, Judge.

Action by John Jones against the Mutual Creamery Company. From a judgment of dismissal, plaintiff appeals.

AFFIRMED.

Claude F. Baker, of Eureka, and J. C. Halbersleben, of Provo, for appellant.

Bagley Judd & Ray, of Salt Lake City, for respondent.

STRAUP J. CHERRY, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

STRAUP, J.

This action was brought by the plaintiff to recover damages against the Mutual Creamery Company for the death of his minor son alleged to have been caused through the negligence of the company. It was alleged and claimed by the plaintiff that L. D. Mecham was in the employ of the company, and that in the course of his employment, and through his negligence in driving a truck on a public highway, he collided with and ran over plaintiff's son and killed him. The company denied the alleged negligence, and denied that Mecham at the time was, or that he prior thereto had been, in its employ, or that the truck was driven for or on its behalf or in pursuit of its business. That issue was the controlling point in the case. At the conclusion of plaintiff's evidence, the court granted a nonsuit on the ground that it was not sufficiently shown that Mecham was an employee of the company or that it was responsible for any act of negligence that might have been committed by him in driving the truck. On dismissal of the action, the plaintiff appeals.

The creamery company, among other things, at American Fork City, was engaged in the business of buying eggs from nearby poultry raisers. Its general manager at its place of business was Morris Hanson. It also had in its employee one Sager, who two days of the week acted as salesman in selling butter, eggs, cheese, and ice cream. The other five days of the week he was employed to gather eggs from those who had eggs to sell, using his own truck for such purpose, and was paid 25 cents a case for gathering eggs for the company. He gathered the eggs nearby wherever eggs were procurable. In such particular he was employed by the company to solicit and gather eggs for the company on a commission of 25 cents a case, and in doing so he was at liberty to go when and where and to work as early and late as he pleased. He furnished and used his own car for the purpose, and was paid a commission on the amount of eggs procured by him. Mecham in no sense was or had been in the employ of the company or in any manner connected with its business. On the late afternoon of the day in question Mecham accompanied Sager on his truck to the company's plant. It is not claimed that Mecham went there to do anything for the company. When they arrived at the plant, Sager was informed that a customer, a Mrs. Robinson, had telephoned the company that she had some eggs ready to be delivered and to come and get them. It was Sager's duty to get the eggs. He and Mecham had contemplated going "to a show" that evening. Sager, learning he was to go for the eggs, stated to Mecham (not in the presence of any one) that because of other work he could not get the eggs and go to the show, whereupon Mecham volunteered to Sager that he would go for the eggs to help him out. Sager assented to that, went inside, got a case, put it on the truck, and Mecham drove off. Hanson, the manager of the company, seeing Mecham drive away, asked Sager where Mecham was going and was told to get Mrs. Robinson's eggs. Hanson made no reply thereto. It is not made to appear that Mecham then was yet in hailing distance or that sufficient opportunity was offered Hanson to countermand what Sager in such particular had done or permitted. On the way, plaintiff's minor child was killed through the alleged negligence of Mecham driving the truck with defective and insufficient brakes, etc., driving at an excessive speed of thirty miles an hour and partly off the paved portion of the highway, and not with due care and circumspection. After the accident, Mecham procured the eggs and delivered them to the company, which thereafter were paid for by the company to Mrs. Robinson. It is not shown that when the eggs were received or paid for by the company it had knowledge of the accident or of the particulars thereof.

In view of such facts, we think no liability is shown against the company, and that the case is and ought to be controlled by the cited case of Mickelson v. New East Tintic Railway Company, 23 Utah 42, 64 P. 463, 465. In that case, and as the facts are disclosed by the opinion, Mickelson at the time of the injury was not, but prior thereto had been, in the employ of the company as a brakeman. As claimed by him, he several days prior to the injury had a conversation with the president of the company with respect to reentering the employ of the company, and was told to see the superintendent. He saw the superintendent July 10th, but was not given employment; the superintendent making no definite statement with respect thereto. On the next day the engineer of the crew of the company asked him to go with him to act as brakeman, and told him that, if the company would not pay him for such service, he (the engineer) would. Mickelson thereupon on that day acted as brakeman, and, as he testified, with the superintendent seeing him at work and making no objection. On the next day, the 12th, he, at the request of the engineer, again did the same kind of work, but, as he testified, he on that day did not see anything of the superintendent and no evidence was given to show that the superintendent on that day saw him at work. He was injured on that day, and sought to recover damages against the company on the theory of a relation of master and servant between him and the company, and that the injury was the result of the company's negligence. It was not shown that the engineer had either express or implied authority to employ Mickelson, and evidence was given to show that the engineer had no such authority.

On a submission of the case to the jury, the company proposed this request:

"Jones, the engineer, did not, by virtue of his position as engineer, have any authority to employ the plaintiff as a brakeman for the defendant; and if he engaged the plaintiff to assist him in the management of the train for his own convenience, then the plaintiff did not, by reason of such employment, become the servant or employee of the defendant company."

The court gave the request, but with this modification:

"Unless you further find from the evidence that the defendant, or its agent, either knew of such employment, and acquiesced therein, or that the defendant, or its agents, on the day of the accident, and prior to such accident, saw plaintiff working on and about said train assisting said engineer, and made no objection thereto."

A judgment was had against the company. It appealed, and on the appeal complained of the instruction so given by the court. The question thus presented for decision, in such respect, was whether on the record, or more properly now speaking on the facts as disclosed by the opinion, the instruction as given and as a whole stated the law applicable to the case. The court held that the request as tendered was a correct statement of the law, for the reason that there was not anything to show that the engineer had authority to employ the plaintiff, and inasmuch as the engineer, as indicated by the testimony of the plaintiff, asked him or employed him for his own convenience, the plaintiff did not become the employee of the company, and therefore the company was not under any legal obligation to furnish him a reasonably safe place to work, the negligence complained of resulting in injury. The court then considered the portion of the charge constituting the modification of the request. It is claimed that what the court stated with respect thereto was obiter dictum. We do not think so. The real question to be decided was whether the instruction as given was erroneous. That involved the correctness of the request as tendered as well as the correctness of the modification of it. Complaint was made of the refusal of the court to give the request as tendered, and also of modifying it and instructing the jury, as was done. Both were involved. Both were presented and argued, and both were considered and decided. In considering the modification, the court held it erroneous,

"because: First, the evidence does not show that on the day of the accident any officer or agent of the defendant saw the plaintiff on the train; and, second, if the plaintiff was merely assisting on or about the train for the engineer's own convenience, then neither the company nor any of its agents, upon seeing him so assisting, was bound to object thereto. It is difficult to see why, under the circumstances disclosed by the evidence, the burden should be cast upon the defendant or its officers to make objections to the presence of the plaintiff on or about the train. Certainly, the mere seeing, by an officer of a railway company, of a person on or about its train, casts no duty upon the corporation to take affirmative action. Nor, under such circumstances, does mere silence amount to a ratification of employment, or to an estoppel"--citing cases in support thereof.

Thus as is seen, several grounds or...