Lallatin v. Terry, 8712

• Decision Date: 05 June 1959
• Docket Number: No. 8712,8712
• Citation: 81 Idaho 238,340 P.2d 112
• Parties: Rita B. LALLATIN and Anton Fred Lallatin, Elizabeth Jeannie Lallatin and Lynn B. Lallatin, Minors, by Rita B. Lallatin, their Guardian ad litem, Plaintiffs-Appellants, v. Jay W. TERRY and Dyke's Electric Co., a corporation, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 112

340 P.2d 112

81 Idaho 238

Rita B. LALLATIN and Anton Fred Lallatin, Elizabeth Jeannie Lallatin and Lynn B. Lallatin, Minors, by Rita B. Lallatin, their Guardian ad litem, Plaintiffs-Appellants, v. Jay W. TERRY and Dyke's Electric Co., a corporation, Defendants-Respondents.

No. 8712.

Supreme Court of Idaho.

June 5, 1959.

Gee & Hargraves, Pocatello, for appellants.

L. F. Racine, Jr., Pocatello, for respondent Dyke's Electric Co.

E. H. Casterlin and Hugh C. Maguire, Jr., Pocatello, for respondent Terry.

TAYLOR, Justice.

Plaintiffs (appellants) are the surviving widow and children of Anton H. Lallatin, deceased. At about 7:30 a. m. on January 31, 1957, the deceased was struck and killed by an automobile driven by the defendant (respondent) Jay W. Terry. The accident occurred on U. S. Highway 30 about eight miles west of Soda Springs. The deceased and witness Noble W. Hussey, as employees of the state highway department, were engaged in plowing snow from the highway. They were operating a truck with a sweep or blade attached at an angle to the front end thereof. Deceased was the driver. The truck was equipped on the rear with four tail lights, two reflectors, two clearance lights, and on top of the cab it bore a blue light which flashed both forward and to the rear. Being advised that snow was drifting onto the highway between Soda Springs and Bancroft, deceased and Hussey left Soda Springs in the truck at about 5:30 a. m. They had moved the snow as they drove both west and east, and part of it a second time in a westerly direction. They were returning toward the east when the blade in front of the truck collided with the rear of an automobile stalled in the snow in a cut. They had seen the red rear lights of the automobile, but thought the car was moving; their vision then becoming obscured by swirling snow they did not again see the lights of the car until they ran into it. Due either to the impact or an effort to back the truck away from the car, or both, the truck was stopped at an angle to the road, the front end facing somewhat north of east and the rear to the sourth of west, so that the left end of the blade was upon or near the center line of the highway. Hussey attempted to open the door on the right, but being against the snow bank, that door could not be opened. They looked in both directions for approaching traffic; then deceased alighted from the truck on the left side and was followed by Hussey.

Deceased started to walk forward, intending to walk around the left end of the blade to the stalled car in front. He had taken a few steps in that direction when he observed the lights from Terry's car approaching from the west. The deceased turned, facing the lights, called Hussey's attention to them and, as Hussey put it, 'I guess we was just sort of paralyzed, couldn't move, and there was a crash.' Hussey estimated the time between alighting from the truck and observing the lights at about eight to fourteen seconds.

The Terry car struck deceased, who at that moment was standing on the highway a short distance out from the front end of the truck. The right front corner of the Terry automobile collided with the left front fender and bumper of the truck and the left end of the snow blade. The car came to rest crossways of the north traffic lane with its front end facing, and within two or three feet of, the blade of the snow plow.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The picture, plaintiffs' exhibit E, shows the relative positions of the car and truck after the collision. The L and H placed on the photograph by the witness Hussey indicate the points where Lallatin, deceased, and the witness stood at the time of the accident.

The highway in the area involved passes through rolling terrain by means of minor fills in the low areas, and minor cuts through the hill crests. The snow was drifting onto the highway in the cuts, but was swept off the road by the wind, and the road was bare in the spaces between. Terry had passed through several of these cuts before reaching the one where the accident occurred. He observed that a snow plow had been operating on the highway, but said he saw no vehicle or lights ahead of him. Just before entering the swirling snow in the cut where the truck was stalled he reduced his speed to the point where he observed or felt the overdrive go out of operation, which occurs in that particular car at 22 miles per hour, and he was still slowing down up to the time of the collision. Describing the sudden appearance of the truck, 'It just seemed like I came out of a wall and there was a truck, the rear end of a truck, staring me in the face.' 'It was just like somebody raised a curtain and there it sat.' Terry turned to the left in an attempt to go around the truck on that side. He did not apply his brakes, explaining, 'I was afraid I would lose control of the car, * * * I was afraid I would slide into the side of it.' When his car had stopped Terry jumped out, ran to the front, and momentarily observed deceased's body lying on the highway in front of his car. He spoke to Hussey about halting traffic, and ran to the west to stop two cars which he knew were following him. Hussey went forward to stop traffic coming from the east, and to get some traveler to go to Soda Springs for an ambulance. The sheriff testified that as he approached the scene from the east, the snow was still swirling and that he did not see the flashing light on the truck until within 50 feet of it, and that from the information he gathered at the scene he calculated Terry's speed at 20 miles per hour.

Terry was taken to the Soda Springs hospital for observation, and released the next day. On admission to the hospital he was asked concerning his employment. The blank on the hospital admission record opposite the word, 'Employer' was filled in, 'Dyke's Pole & Elec. Co.' (Plaintiffs' Exh. G.) Dyke's Pole Line Electric was an individual proprietorship business owned and operated by the witness Dykeman. The defendant (respondent) Dyke's Electric Co. is a corporation organized subsequently to the accident and is the successor of the Dyke's Pole Line Electric. Dyke's Pole Line Electric had a contract to make certain electrical changes and installations at the plant of the Monsanto Chemical Company at Soda Springs. Defendant Terry was a journeyman electrician, residing in Pocatello, and a member of Local 449, of the International Brotherhood of Electrical Workers. Dyke's Pole Line Electric was a member of the Utah-Idaho chapter of the National Electrical Contractors' Association. The contract between the association and the union provided among other things that the contractors would employ electricians through the union on jobs such as that at Monsanto; the electrician employee was to receive, in addition to the hourly wage, $7 per day to cover the cost of subsistence or travel to and from the employee's residence. When a contractor desired the services of electricians, he requested the agent of the union to send the men wanted, out to the job. If the man or men sent out reported at the job and were acceptable to the contractor they were placed on the payroll and put to work. The contractor could reject any man, so reporting. In which case, he would not be employed. However, if the reporting workmen was qualified, the contractor was required to pay him for four hours work, and the agreed subsistence.

In response to a request from Dyke's Pole Line Electric, Terry had been asked and agreed to accept employment by Dyke's on the Monsanto job at Soda Springs. He had not been previously employed by Dyke's. He left Pocatello at about 6:00 a. m. on January 31st, the day of the accident, to report for work at the Monsanto plant at 8:00 a. m., driving his own car. His means of transportation was a matter wholly of his own choice. The would-be employer had no control or right of control thereof.

Dyke's had a foreman or superintendent and a number of employees on the job at Soda Springs. Terry never reported to the foreman for work on that job and was never placed on the payroll or employed by Dyke's, nor was he ever paid, and he never claimed, any wages or subsistence from Dyke's.

'(1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. * * *' § 219;

'(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control. * * *' § 220;

'A principal is not liable for physical harm caused by the negligent physical conduct of a non-servant agent during the performance of the principal's business, if he neither intended nor authorized the result nor the manner of performance, unless he was under a duty to have the act performed with due care.' § 250; Restatement of the Law of Agency, Second.

At the time of the accident, Terry was neither an agent, employee nor servant of Dyke's Pole Line Electric. Assuming that an obligation on the part of Dyke's arose out of his driving toward Soda Springs in an effort to report for work the record is conclusive that Dyke's had no control or right of control of the means or manner of transportation. The use and operation of his automobile in that effort was entirely his choice, and under his complete control. He was not a person 'employed by another person who is responsible for his conduct,' within the wrongful death statute. I.C. § 5-311. The prospective employer was not liable for any negligence on the part of Terry in the operation of his car while driving toward the place of intended employment. I.C. § 44-1202, Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323; Hayward v. Yost, 72 Idaho 415, 242 P.2d 971; Bourus v. Hagen, 192 Wash. 588, 74 P.2d 205; Dickson v. Beemer, Mo., 217 S.W.2d 515; Khoury v. Edison Electric...