Leech v. Sultan Ry. & Timber Co., 22540.

• Decision Date: 24 March 1931
• Docket Number: 22540.
• Court: Washington Supreme Court
• Parties: LEECH v. SULTAN RY. & TIMBER CO. et al. HALLIER v. SAME.

297 P. 203

161 Wash. 426

LEECH v. SULTAN RY. & TIMBER CO. et al.

HALLIER v. SAME.

No. 22540.

Supreme Court of Washington

March 24, 1931

Department 2.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Actions by Mrs. L. P. Leech, as administratrix of the estate of L. P Leech, deceased, and by G. Irene Hallier against the Sultan Railway & Timber Company and others, which were consolidated for trial and appeal. Judgments for plaintiffs, and defendants appeal.

Reversed and remanded, with directions.

MAIN J., dissenting.

Robert Mulvihill and J. A. Coleman, both of Everett, for appellants.

Stafford Brothers, of Seattle, for respondents.

MILLARD J.

The collision on the Pacific highway near Everett of an automobile operated by G. Irene Hallier and owned by the estate of L. P. Leech, deceased, with a truck driven by A. L Jones, resulted in the commencement of two actions (which were consolidated for trial and are consolidated on appeal) against A. L. Jones and his alleged employer, the Sultan Railway & Timber Company. One action was instituted by G. Irene Hallier to recover for personal injuries sustained in the collision the other was brought by the administratrix of the Leech estate to recover for damages to the automobile. The challenges of the Sultan Railway & Timber Company to the legal sufficiency of the evidence at the close of plaintiffs' cases and again at the close of all of the evidence were overruled. In each cause the jury returned a verdict in favor of the plaintiff and against the defendants. Motion in each cause for judgment notwithstanding the verdict was denied. From judgments entered upon the verdicts, the Sultan Railway & Timber Company has appealed.

Counsel for appellant contend that there is neither evidence nor reasonable inference from the evidence to justify the verdict; that the evidence adduced calls for the conclusion, as a matter of law, that appellant is not liable in damages to the respondents, inasmuch as Jones' relation to appellant at the time of the collision was that of an independent contractor and not that of an employee or servant.

The rules, followed by us in Swam v. AEtna Life Insurance Co., 155 Wash. 402, 284 P. 792, 794, to distinguish an independent contractor from an employee, are as follows:

'The principal consideration in determining the question is the right to control the matter of doing the work. Generally speaking, it may be stated that, if the employee is under the control of the employer, he is a servant or employee and not an independent contractor, but if in the performance of the work he is not under the control of the employer, he is an independent contractor. However, it is not the actual exercise of the right of interfering with the work but the right to control which constitutes the test.' 31 C.J. p. 474.

'If under the contract the party for whom the work is being done may prescribe not only what the result shall be, but also may direct the means and methods by which the other shall do the work, the former is an employer, and the latter an employee. But if the former may specify the result only, and the latter may adopt such means and methods as he chooses to accomplish that result, then the latter is not an employee, but an independent contractor. So the master test is the right to control the work. And it is this right which properly differentiates service from independent employment. It is to be observed that actual interference with the work is unnecessary--it is the right to interfere that determines.' Kelly's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818, 820.

That is to say, an independent contractor is one who engages to perform a certain service for another, according to his own manner and method, free from control and direction of his employer in all matters connected with the performance of the service, except as to the result of the work.

What are the facts? The only evidence tending to show the relationship of Jones to appellant was the testimony of Jones and of appellant's foreman, Stanley Toddy. Both were called as witnesses by respondents. Their testimony, summarized, is as follows: On the date of the collision, Toddy, a pile driver foreman of appellant, went from Everett where he was preparing to drive some piles for the appellant, to Oso, at which place he was to call to obtain tools for the pile driver. Jones, for two or three years immediately preceding and including the date of the collision, was engaged in the business of buying and selling cedar poles. Jones arrived at Oso shortly after Toddy's appearance at that point. Jones went to Oso for the purpose of inspecting some poles owned by the appellant. The appellant's superintendent could not spare the time to accompany Jones to inspect the poles. The superintendent asked Jones whether he would haul the tools in his (Jones') truck from Oso to a log dump where Toddy desired the tools delivered. The superintendent offered Jones $10, to be credited to Jones' account with appellant if he would do the hauling. The offer was accepted by Jones, who, with the assistance of appellant's superintendent, loaded the tools onto the truck. One of the terms of the oral agreement was that the tools would be delivered by Jones that afternoon. Jones did not know where the log dump was located. Directions as to the route he should travel to arrive at the log dump were given to Jones by the superintendent. The pile driver foreman advised Jones that he would be ahead of Jones on the road; that at a certain place on the road he would await the arrival of Jones and point out to him the route he should follow. That afternoon Jones started with his truck to deliver the tools. He was later overtaken and passed by Toddy, the pile driver foreman, in his automobile. When Jones arrived near the scene of the collision, he saw Toddy, who was waiting for him as the parties had agreed. Toddy raised his hand, and Jones pulled off of the road preliminary to making a turn. While making the turn, the collision of Jones' truck with the automobile of respondents occurred. There is no evidence that other than on this occasion Jones was ever employed by the appellant in any capacity.

It must be conceded that if Jones had been engaged in general hauling and had been directed by appellant to haul the tools to a specified place, that of itself would not change the nature of, or convert the special employment into the relation of master and servant.

'The direction to one engaged in 'general hauling' to haul property to or from a specified place does not change the nature of or convert a special employment into the general relation of master and servant; a man does not become answerable for the negligence of a taxicab driver, or of a carrier merely by specifying where he wishes to go or to have his property delivered.' Wright v. Wilson Co., 83 Pa. Super. Ct. 487.

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