Lee Moor Contracting Co. v. Blanton, Civil 3757

• Decision Date: 23 February 1937
• Docket Number: Civil 3757
• Citation: 65 P.2d 35,49 Ariz. 130
• Parties: LEE MOOR CONTRACTING COMPANY, a Corporation, Appellant, v. ELIZABETH L. BLANTON, Administratrix of the Estate of Thomas H. Blanton, Deceased, Appellee
• Court: Arizona Supreme Court

65 P.2d 35

49 Ariz. 130

LEE MOOR CONTRACTING COMPANY, a Corporation, Appellant, v. ELIZABETH L. BLANTON, Administratrix of the Estate of Thomas H. Blanton, Deceased, Appellee

Civil No. 3757

Supreme Court of Arizona

February 23, 1937

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment reversed and cause remanded for new trial.

Messrs Norris & Patterson, Mr. Charles L. Ewing, and Mr. Charles E McDaniel, for Appellant.

Messrs Cornick & Carr, Mr. W. T. Elsing and Mr. B. M. Partridge, for Appellee.

OPINION

ROSS, J.

Elizabeth L. Blanton brought this action as administratrix for damages to her husband's estate, charging defendants Lee Moor Contracting Company and Lee Kiser with having caused his death through their negligent operation of a motor-truck. The Lee Moor Contracting Company, to which we shall hereafter refer as the company, was a general contractor for certain road construction, on United States Highway No. 89, between Ashfork and Prescott, and had hired from Lee Kiser a motor-truck with which to haul gravel from a gravel pit to what is designated as the "hot" plant, located on the road about five miles distant and in a southerly direction from the gravel pit. The general course of the highway is north and south. The gravel pit is located about one-half mile west of the highway, and from it the gravel pit road runs easterly until it gets within about one hundred feet of the highway, at which point it turns south and for a thousand feet parallels the highway and then gradually approaches and enters it at an angle of about forty-five degrees.

On August 23, 1934, as the Kiser truck, on its way to the "hot" plant, drove onto Highway No. 89, the Blanton automobile, driven by the deceased, Thomas H. Blanton, was coming from the north and, to avoid a collision with the truck was steered from the right to the left side of the road, where it overturned, injurying Blanton so that he died. There was no collision, and the driver of the Kiser truck did not know that the Blanton car had overturned or that anyone had been hurt until some time thereafter when another gravel truck driver overtook him and told him what had happened.

The jury's verdict was against the company and in favor of Lee Kiser. The former has appealed from the judgment and the order overruling its motion for new trial.

Of many errors assigned, we first consider the one that the court committed error in refusing to grant defendant's motion for an instructed verdict at the close of the case, on the ground the evidence showed the driver of the motor-truck was not the servant of the defendant company.

The complaint alleges that the truck involved in the accident was owned by defendant Lee Kiser; that it was hired by defendant company and was being used by it; and that the driver was the servant of the company and Lee Kiser and under their direction, supervision, and control. It is the contention of the company that the evidence conclusively shows that it had hired the motor-truck and the driver thereof from Lee Kiser to haul gravel from the gravel pit to the "hot" plant on the road, and that the control, supervision, and direction of the truck and its driver were in Kiser and not in the defendant company. The plaintiff resists this proposition and insists the driver of the truck was the servant of the company.

It is the law that, where it is attempted to hold one responsible in damages for the negligence of another on the principle of respondeat superior, it is essential to show the one committing the wrong which caused the damage was in the doing of the act the servant of the person attempted to be charged. Whether the relation of master and servant between the one sought to be charged and the one committing the injury exists often is a very difficult question to determine.

"A servant is a person employed to perform service for another in his affairs and who, with respect to his physical conduct in the performance of the service is subject to the other's control or right to control." 1 American Law Institute, Agency, § 220. One may be in the employment of another without being a servant, as where he is working under an independent contract. The authors of the above text in their comments (page 485) say:

"The important distinction is between service in which the actor's physical activities and his time are surrendered to the control of the master, and service under an agreement to accomplish results or to use care and skill in accomplishing results. Those rendering service but retaining control over the manner of doing it are not servants. They may be agents, agreeing only to use care and skill to accomplish a result and subject to the fiduciary duties of loyalty and obedience to the wishes of the principal; or they may be persons employed to accomplish or to use care to accomplish physical results, without fiduciary obligations, as where a contractor is paid to build a house. An agent who is not subject to control as to the manner in which he performs the acts that constitute the execution of his agency is in a similar relation to the principal as to such conduct as one who agrees only to accomplish mere physical results. For the purpose of determining liability, they are both 'independent contractors' and do not cause the person for whom the enterprise is undertaken to be responsible...."

The question then is: Was Kiser rendering service to the company in which he retained the control or right to control the physical conduct of the driver of the rented motor-truck in the accomplishment of results, or had he surrendered such control to the company? If the facts are that Kiser rented his truck with the service of a driver to haul gravel from the gravel pit to certain designated points on the road, to be used by the company in the construction or improvement thereof, and in the performance of such work he had control or right of control of the conduct and acts of the truck driver, then the driver was his servant and he only would be responsible for his negligence. Whether a lent or hired servant continues the servant of his general employer, or becomes the servant of the borrower or hirer, is always a question of fact. Under some state of facts he may be the servant of one part of the time and the other the rest of the time. An example of a case where he is as to some of his acts the servant of one, and as to some of his acts the servant of the other, is where a general employer engaged in the business of hiring trucks to others lends or hires a motor-truck with a driver to another to haul, we will say, gravel from a gravel pit to points on a road construction job, the loading and unloading to be under the control or right of control of the borrower or hirer, while the mechanical operation, management, and care of the truck remain in the control or right of control of the driver between the points of loading and unloading. The text-books and decisions sustaining the proposition, that as long as the employee is furthering the business of his general employer by service rendered to another he is the servant of the former, are numerous. We give some of them: 1 American Law Institute, Agency, § 227, and illustrations; 5 Am. Jur., Automobiles, § 384; Albert v. Hudson, 49 Ga.App. 636, 176 S.E. 659; Burns v. Eno, 213 Iowa 881, 240 N.W. 209; Thatcher v. Pierce, 281 Pa. 16, 125 A. 302; Babbitt v. Say, 120 Ohio St. 177, 165 N.E. 721; Independence Indemnity Co. v. Carmical & Woodring, 13 La. App. 64, 127 So. 10; Antonelly v. Adam, 175 Minn. 438, 221 N.W. 716; Gorman v. A. R. Jackson Kansas City Showcase Works Co., (Mo. App.) 19 S.W.2d 559; Billig v. Southern Pac. Co., 189 Cal. 477, 209 P. 241; Callahan v. Harm, 98 Cal.App. 568, 277 P. 529 (hearing denied by Supreme Court); Lacombe v. Cudahy Packing Co., 103 N.J.L. 651, 137 A. 538; Densby v. Bartlett, 318 Ill. 616, 149 N.E. 591, 42 A.L.R. 1406, and annotation at page 1416 et seq.

Speaking of a case whose facts involved the question we have, the Supreme Court of New York, through Mr. Justice CARDOZO (now Associate Justice of the Supreme Court of the United States), said:

"The rule now is that, as long as the employee is furthering the business of his general employer by the service rendered to another, there will be no inference of a new relation unless command has been surrendered, and no inference of its surrender from the mere fact of its division." Charles v. Barrett, 233 N.Y. 127, 135 N.E. 199, 200.

Control or right to control determines liability. Grabe v. Industrial Commission, 38 Ariz. 322, 299 P. 1031; Swansea Lease, Inc., v. Molloy, 20 Ariz. 531, 183 P. 740.

The defendant contends that the driver of the truck was, at the time plaintiff's intestate was injured, under the control or right of control of Kiser, the owner of the truck, and not of defendant. We must look to the evidence to see if it sustains such contention. The defendant's superintendent E. H. Wallace, testified that defendant, on August 24, 1934, was doing work on a road construction project between Ashfork and Prescott, as follows:

"Q. At approximately that time, some time in that vicinity, did you enter into any arrangement on behalf of your company with Mr. Kiser concerning one of his trucks? (Italics ours.) A. Yes, sir.

"Q. Did that concern the truck which has been described during this testimony here? A. Yes, sir.

"Q. What was your arrangement with Mr. Kiser? A. We were hauling gravel from a pit near Paulden to the hot plant about five and one-half miles this side, and we made an agreement with him to pay him so much a load.

"Q. How much a load? A. $1.25 a load.

"Q. What was he to do under the terms of that arrangement? A. They were just to go over to the gravel pit...