Joslin v. Idaho Times Publishing Co., 6553

• Decision Date: 08 May 1939
• Docket Number: 6553
• Citation: 60 Idaho 235,91 P.2d 386
• Parties: L. E. JOSLIN and SARAH M. JOSLIN, His Wife, Appellants, v. IDAHO TIMES PUBLISHING COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

91 P.2d 386

60 Idaho 235

L. E. JOSLIN and SARAH M. JOSLIN, His Wife, Appellants, v. IDAHO TIMES PUBLISHING COMPANY, a Corporation, Respondent

No. 6553

Supreme Court of Idaho

May 8, 1939

MASTER AND SERVANT-EXISTENCE OF RELATIONSHIP-EVIDENCE-RECORDS OF STATE INSURANCE FUND-INDEPENDENT CONTRACTOR-DUTIES OF EMPLOYER-AUTOMOBILES-INJURIES-PRIMA FACIE CASE.

1. Where issue was whether newspaper carrier, whose motorcycle struck plaintiff, was newspaper company's servant or independent contractor, company's premium statements submitted to State Insurance Fund which indicated that company had no contractors or subcontractors were admissible notwithstanding statute prohibiting disclosure of information acquired from employers pursuant to Workmen's Compensation Act without authority of department or pursuant to its rules, "or as otherwise required by law," in view of the quoted words. (I. C. A., sec. 43-1726.)

2. Where an issue was whether newspaper carrier, whose motorcycle struck plaintiff, was company's servant or independent contractor, company's premium statements submitted to State In- surance Fund which indicated that company had no contractors or subcontractors were admissible without explanatory offer, where competency and relevancy appeared on face of the statements. (I. C. A sec. 43-1726.)

3. Where issue was whether newspaper carrier, whose motorcycle struck plaintiff, was company's servant or independent contractor, company's premium statements submitted to State Insurance Fund, wherein company unequivocally reported that it had no contractors nor subcontractors, were admissible as establishing at least prima facie that carrier was a "servant" of the company. (I. C. A., sec 43-1726.)

4. Where issue was whether newspaper carrier, whose motorcycle struck plaintiff, was company's servant or independent contractor, company's letter to State Insurance Fund which indicated that, after the accident and a prior decision, a contract was made with carriers as independent contractors, and which stated that theretofore carriers had been classified as "employees" under "chauffeurs," was admissible.

5. One employing a contractor to engage in a hazardous employment must exercise some care in selection as to fitness and ability of the contractor to operate safely, and failure to do so will impose liability on one employing contractor for contractor's negligence.

6. The court will take judicial notice from tremendous number of accidents arising from use of motor vehicles that it requires some skill, experience, and judgment to safely operate them and therefore their operation is sufficiently fraught with potential hazard to justify application of rule that one employing contractor to engage in hazardous employment must exercise care in selection as to fitness and ability to operate safely, to one employing contractor to operate motor vehicle.

7. In action against newspaper company for injuries sustained by plaintiff who was struck by motorcycle operated by newspaper carrier, evidence that carrier was company's "servant" and not "independent contractor" was sufficient to present prima facie case for plaintiff and require denial of nonsuit.

8. In action against newspaper company for injuries sustained by plaintiff who was struck by motorcycle operated by newspaper carrier, evidence that company failed to exercise reasonable care in selecting the carrier, as a competent person to operate motor vehicle heavily loaded with newspapers, was sufficient to present prima facie case for plaintiff and require denial of nonsuit even if carrier was "independent contractor" and not "servant" of the company.

9. In action against newspaper company for injuries sustained by plaintiff who, while fixing tire, was struck by motorcycle operated by newspaper carrier, contributory negligence of plaintiff was for jury, under the evidence.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Chas. E. Winstead, Presiding Judge.

Action for personal injuries sustained by appellant L. E. Joslin alleged to have been caused by the negligent operation of a motorcycle by respondent's newspaper carrier. From a judgment of nonsuit appellants appeal. Reversed and remanded for a new trial.

Judgment reversed with instructions. Costs awarded to appellants. Petition for rehearing denied.

James R. Bothwell and Harry Povey, for Appellants.

Facts and circumstances sufficiently established relationship of master and servant existing between respondent and Kirkman to withstand motion for nonsuit and justify submission of question to jury in addition to presumption arising where it is shown that the alleged servant was actually engaged in performing labors such as were a part of the ordinary business of an employer and in possession of property of the employer, particularly where such evidence was not rebutted by a showing of the existence of an independent contract. (39 C. J. 52, sec. 28; Western Union Telegraph Co. v. Lamb, 140 Tenn. 107, 203 S.W. 752; Baldwin v. Abraham, 57 A.D. 67, 67 N.Y.S. 1079; Dibble v. San Joaquin Light & Power Corporation, 47 Cal.App. 112, 190 P. 198, 199, and cases cited.)

Where an employer takes out compensation or liability insurance covering an employee, evidence of such fact is material and admissible if it is asserted that the employee was not a servant but an independent contractor. (Annotation, 85 A. L. R. 784; Biggins v. Wagner, 60 S.D. 581, 245 N.W. 385, 85 A. L. R. 776, and cases cited; Carlson v. P. F. Collier & Son Corporation, 190 Wash. 301, 67 P.2d 842; Laffery v. United States Gypsum Co., 83 Kan. 349, 111 P. 498, Ann. Cas. 1912A, 590, 45 L. R. A., N. S., 930; Robinson v. Hill, 60 Wash. 615, 111 P. 871; Brower v. Timreck, 66 Kan. 770, 71 P. 581.)

Chapman & Chapman, for Respondent.

An employer is not liable for the negligence of his independent contractor. (14 R. C. L., p. 79, sec. 17, and cases cited under note 8; 39 C. J., p. 1324, and cases cited under note 11.)

Plaintiffs' offered exhibits 2, 3 and 4, were not in anywise connected with Wesley Kirkman. Neither was any offer of proof made by appellants to show that said exhibits or either of them related in any way to Wesley Kirkman. The exhibits were properly excluded and the failure to make an appropriate offer of proof does not present a question for review to this court. (Ball v. Stevens, 53 Idaho 111, 21 P.2d 932; Herring v. Davis, 47 Idaho 211, 273 P. 757; Servel v. Corbett, 49 Idaho 536, 290 P. 200; Fite v. French, 52 Idaho 286, 15 P.2d 604; Idaho Farm Development Co. v. Brackett, 44 Idaho 272, 257 P. 35; Idaho & Oregon Land Improvement Co. v. Bradbury, 132 U.S. 509, 10 S.Ct. 177, 33 L.Ed. 433.)

GIVENS, J. Ailshie, C. J., Budge and Morgan, JJ., concur. Holden, J., sat at the hearing but did not participate in the decision of this case.

OPINION

GIVENS, J.

--A previous appeal reversed and remanded a judgment on a verdict in favor of appellant herein for a new trial (Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323, being as to the general circumstances sufficient without restatement herein) because the evidence did not establish the relationship of master and servant between respondent herein and Wesley Kirkman. Upon the second trial the court, for a similar defect, granted respondent's motion for a nonsuit, from which this appeal is herein prosecuted.

The evidence in the second trial was substantially the same as the first except that Champ Rice, Kirkman's predecessor carrier, did not testify and appellants herein offered in evidence as exhibits respondent's premium statements to the State Insurance Fund, covering pay-roll classifications and amounts as a basis for charges by the State Insurance Fund, as respondent's workmen's compensation insurance carrier, for the years 1934 and 1935, the preceding and current year of the accident, on respondent's objections rejected by the court.

Without naming any employees, these reports set forth, among other classifications and descriptions, the following: "Chauffeurs and their helpers," and on the back of such form, under the heading of "Instructions" the following: "Include the payments of contractors and sub-contractors. (List all contractors and sub-contractors by name.)" The instruction in parentheses being in larger blacker type. No payments of contractors or sub-contractors or names of contractors or sub-contractors appear therein.

The amended complaint herein alleged that Kirkman was in respondent's employ as agent, servant and employee. The answer denies this alleging that...